U.S. District Court Southern District of New York (White Plains) CIVIL DOCKET FOR CASE #: 7:19-cv-00639-CS-LMS

M. G. et al v. Cuomo et al Assigned to: Judge Cathy Seibel Referred to: Magistrate Judge Lisa Margaret Smith Cause: 42:12132 Americans with Disabilities Act Discrimination

Date Filed: 01/23/2019 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities - Other Jurisdiction: Federal Question

Plaintiff
M. G. individually and on behalf of all similarly situated

represented by Betsy C. Sterling Disability Rights Advocates 44 Exchange Blvd Suite Suite 110 Rochester, NY 14614 518-512-4842 Fax: 585-348-9823 Email: betsy.sterling@drny.org TERMINATED: 12/23/2019 LEAD ATTORNEY

Elena Maria Landriscina The Legal Aid Society 199 Water Street New York, NY 10038 212-577-3300 Email: elandriscina@legal-aid.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua Morris Rosenthal Disability Rights New York 25 Chapel Street Suite 1005 Brooklyn, NY 11201 518-512-4950 Email: jmorrisrosenthal@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Walter G. Ricciardi Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of The Americas

New York, NY 10019 (212)-373-3350 Fax: (212)-492-0350 Email: wricciardi@paulweiss.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Crystal Lohmann Parker Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Ave. of the Americas Ste 2816b New York, NY 10019 212-373-3000 Email: cparker@paulweiss.com ATTORNEY TO BE NOTICED
Emily A. Vance Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019 212-373-3000 Email: evance@paulweiss.com ATTORNEY TO BE NOTICED
Jamie Marie Noonan Witte Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of The Americas New York, NY 10019 212-373-3000 Email: jwitte@paulweiss.com TERMINATED: 04/09/2020
Lane B. Zuraw Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of The Americas New York, NY 10019 212-373-3000 Email: lzuraw@paulweiss.com TERMINATED: 11/21/2019
Robert Matthew Quackenbush The Legal Aid Society

Plaintiff
P. C. individually and on behalf of all similarly situated

199 Water Street New York, NY 10038 212-577-3530 Fax: 646-619-4119 Email: rquackenbush@legal-aid.org ATTORNEY TO BE NOTICED
Samuel Margolis Paul Weiss (NY) 1285 Avenue of the Americas New York, NY 10019 212-373-3000 Email: smargolis@paulweiss.com ATTORNEY TO BE NOTICED
Veronica Vela Legal Aid Society 199 Water Street, 3rd Floor New York, NY 10038 (212)-577-3530 Fax: (212)-509-8433 Email: vvela@legal-aid.org ATTORNEY TO BE NOTICED
Stefen Russell Short Legal Aid Society 199 Water Street, 3rd Floor New York, NY 10038 (212) 577-3935 Fax: (646) 616-4225 Email: sshort@legal-aid.org ATTORNEY TO BE NOTICED
represented by Betsy C. Sterling (See above for address) TERMINATED: 12/23/2019 LEAD ATTORNEY
Elena Maria Landriscina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Morris Rosenthal (See above for address)

Plaintiff
C. J. individually and on behalf of all similarly situated

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Walter G. Ricciardi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Crystal Lohmann Parker (See above for address) ATTORNEY TO BE NOTICED
Emily A. Vance (See above for address) ATTORNEY TO BE NOTICED
Jamie Marie Noonan Witte (See above for address) TERMINATED: 04/09/2020
Lane B. Zuraw (See above for address) TERMINATED: 11/21/2019
Robert Matthew Quackenbush (See above for address) ATTORNEY TO BE NOTICED
Samuel Margolis (See above for address) ATTORNEY TO BE NOTICED
Veronica Vela (See above for address) ATTORNEY TO BE NOTICED
Stefen Russell Short (See above for address) ATTORNEY TO BE NOTICED
represented by Betsy C. Sterling (See above for address) TERMINATED: 12/23/2019 LEAD ATTORNEY

Elena Maria Landriscina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Morris Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Walter G. Ricciardi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Crystal Lohmann Parker (See above for address) ATTORNEY TO BE NOTICED
Emily A. Vance (See above for address) ATTORNEY TO BE NOTICED
Jamie Marie Noonan Witte (See above for address) TERMINATED: 04/09/2020
Lane B. Zuraw (See above for address) TERMINATED: 11/21/2019
Robert Matthew Quackenbush (See above for address) ATTORNEY TO BE NOTICED
Samuel Margolis (See above for address) ATTORNEY TO BE NOTICED
Veronica Vela (See above for address) ATTORNEY TO BE NOTICED
Stefen Russell Short (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
M. J. individually and on behalf of all similarly situated

represented by Betsy C. Sterling (See above for address) TERMINATED: 12/23/2019 LEAD ATTORNEY
Elena Maria Landriscina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Morris Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Walter G. Ricciardi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Crystal Lohmann Parker (See above for address) ATTORNEY TO BE NOTICED
Emily A. Vance (See above for address) ATTORNEY TO BE NOTICED
Jamie Marie Noonan Witte (See above for address) TERMINATED: 04/09/2020
Lane B. Zuraw (See above for address) TERMINATED: 11/21/2019
Robert Matthew Quackenbush (See above for address) ATTORNEY TO BE NOTICED
Samuel Margolis (See above for address) ATTORNEY TO BE NOTICED
Veronica Vela

Plaintiff
J. R. individually and on behalf of all similarly situated

(See above for address) ATTORNEY TO BE NOTICED
Stefen Russell Short (See above for address) ATTORNEY TO BE NOTICED
represented by Betsy C. Sterling (See above for address) TERMINATED: 12/23/2019 LEAD ATTORNEY
Elena Maria Landriscina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Morris Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Walter G. Ricciardi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Crystal Lohmann Parker (See above for address) ATTORNEY TO BE NOTICED
Emily A. Vance (See above for address) ATTORNEY TO BE NOTICED
Jamie Marie Noonan Witte (See above for address) TERMINATED: 04/09/2020
Lane B. Zuraw (See above for address) TERMINATED: 11/21/2019
Robert Matthew Quackenbush (See above for address)

Plaintiff
D. R. individually and on behalf of all similarly situated

ATTORNEY TO BE NOTICED
Samuel Margolis (See above for address) ATTORNEY TO BE NOTICED
Veronica Vela (See above for address) ATTORNEY TO BE NOTICED
Stefen Russell Short (See above for address) ATTORNEY TO BE NOTICED
represented by Betsy C. Sterling (See above for address) TERMINATED: 12/23/2019 LEAD ATTORNEY
Elena Maria Landriscina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Morris Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Walter G. Ricciardi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Crystal Lohmann Parker (See above for address) ATTORNEY TO BE NOTICED
Emily A. Vance (See above for address) ATTORNEY TO BE NOTICED
Jamie Marie Noonan Witte (See above for address) TERMINATED: 04/09/2020

Plaintiff D. H.
Plaintiff S. D.

Lane B. Zuraw (See above for address) TERMINATED: 11/21/2019
Robert Matthew Quackenbush (See above for address) ATTORNEY TO BE NOTICED
Samuel Margolis (See above for address) ATTORNEY TO BE NOTICED
Veronica Vela (See above for address) ATTORNEY TO BE NOTICED
Stefen Russell Short (See above for address) ATTORNEY TO BE NOTICED
represented by Stefen Russell Short (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Matthew Quackenbush (See above for address) ATTORNEY TO BE NOTICED
Elena Maria Landriscina (See above for address) ATTORNEY TO BE NOTICED
represented by Stefen Russell Short (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Matthew Quackenbush (See above for address) ATTORNEY TO BE NOTICED
Elena Maria Landriscina

Plaintiff W. P.
V. Defendant Andrew Cuomo in his official capacity as the Governor of the State of New York TERMINATED: 09/25/2020
Defendant New York State Office of Mental Health

(See above for address) ATTORNEY TO BE NOTICED
represented by Stefen Russell Short (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Matthew Quackenbush (See above for address) ATTORNEY TO BE NOTICED
Elena Maria Landriscina (See above for address) ATTORNEY TO BE NOTICED
represented by Jane R. Goldberg New York State Office of the Attorney General (28 Liberty) 28 Liberty Street, 15th Floor New York, NY 10005 212-416-6133 Fax: 212-416-6009 Email: jane.goldberg@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeb Harben New York State Office of the Attorney General (28 Liberty) 28 Liberty Street, 15th Floor New York, NY 10005 (212) 416-6185 Fax: (212) 416-6075 Email: Jeb.Harben@ag.ny.gov ATTORNEY TO BE NOTICED
represented by Jane R. Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Ann Marie T. Sullivan in her official capacity as the Commissioner of the New York State Office of Mental Health
Defendant New York State Department of Corrections and Community Supervision
Defendant Anthony J. Annucci in his official capacity as the Acting Commissioner of the New York State Department of Corrections and Community Supervision
Defendant Anne Marie McGrath in her official capacity as Associate Commissioner of the New York State Department of Corrections and Community Supervision

Jeb Harben (See above for address) ATTORNEY TO BE NOTICED
represented by Jane R. Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeb Harben (See above for address) ATTORNEY TO BE NOTICED
represented by Jane R. Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeb Harben (See above for address) ATTORNEY TO BE NOTICED
represented by Jane R. Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeb Harben (See above for address) ATTORNEY TO BE NOTICED
represented by Jane R. Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeb Harben (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/23/2019
01/23/2019 01/23/2019 01/23/2019 01/23/2019 01/23/2019 01/23/2019
01/23/2019
01/24/2019

# Docket Text
1 COMPLAINT against Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan. (Filing Fee $ 400.00, Receipt Number ANYSDC16226915)Document filed by D. R., C. J., P. C., M. G., M. J., J. R..(Short, Stefen) (Entered: 01/23/2019)
2 FILING ERROR - PDF ERROR - CIVIL COVER SHEET filed. (Attachments: # 1 Exhibit Addendum to Civil Cover Sheet)(Short, Stefen) Modified on 1/24/2019 (jgo). (Entered: 01/23/2019)
3 REQUEST FOR ISSUANCE OF SUMMONS as to Andrew Cuomo, in his official capacity as the Governor of the State of New York, re: 1 Complaint,. Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Short, Stefen) (Entered: 01/23/2019)
4 REQUEST FOR ISSUANCE OF SUMMONS as to The New York State Office of Mental Health, re: 1 Complaint,. Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Short, Stefen) (Entered: 01/23/2019)
5 REQUEST FOR ISSUANCE OF SUMMONS as to Ann Marie T. Sullivan, in her official capacity as the Commissioner of the New York State Office of Mental Health, re: 1 Complaint,. Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Short, Stefen) (Entered: 01/23/2019)
6 REQUEST FOR ISSUANCE OF SUMMONS as to The New York State Department of Corrections and Community Supervision, re: 1 Complaint,. Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Short, Stefen) (Entered: 01/23/2019)
7 REQUEST FOR ISSUANCE OF SUMMONS as to Anthony J. Annucci, in his official capacity as the Acting Commissioner of the New York State Department of Corrections and Community Supervision, re: 1 Complaint,. Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Short, Stefen) (Entered: 01/23/2019)
8 REQUEST FOR ISSUANCE OF SUMMONS as to Anne Marie McGrath, in her official capacity as Associate Commissioner of the New York State Department of Corrections and Community Supervision, re: 1 Complaint,. Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Short, Stefen) (Entered: 01/23/2019)
***NOTICE TO ATTORNEY REGARDING DEFICIENT CIVIL COVER SHEET. Notice to attorney Stefen Russell Short to REFILE Document No. 2 Civil Cover Sheet. The filing is deficient for the following reason(s): Jury Demand code - no selection;. Re-file the document using the event type Civil Cover Sheet found under the event list Other Documents and attach the correct PDF. Use civil

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cover sheet issued by S.D.N.Y. dated June 2017. The S.D.N.Y. Civil Cover Sheet dated June 2017 is located at http://nysd.uscourts.gov/file/forms/civil-cover-sheet.. (jgo) (Entered: 01/24/2019)
***NOTICE TO ATTORNEY REGARDING CIVIL CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Stefen Russell Short. The following case opening statistical information was erroneously selected/entered: Office code Foley Square;. The following correction(s) have been made to your case entry: the Office code has been modified to White Plains;. (jgo) (Entered: 01/24/2019)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The aboveentitled action is assigned to Judge Cathy Seibel. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (jgo) (Entered: 01/24/2019)
Magistrate Judge Lisa M. Smith is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php. (jgo) (Entered: 01/24/2019)
Case Designated ECF. (jgo) (Entered: 01/24/2019)
9 CIVIL COVER SHEET filed. (Attachments: # 1 Addendum to Civil Cover Sheet)(Short, Stefen) (Entered: 01/24/2019)
10 ELECTRONIC SUMMONS ISSUED as to Andrew Cuomo. (jgo) (Entered: 01/24/2019)
11 ELECTRONIC SUMMONS ISSUED as to Ann Marie T. Sullivan. (jgo) (Entered: 01/24/2019)
12 ELECTRONIC SUMMONS ISSUED as to Anthony J. Annucci. (jgo) (Entered: 01/24/2019)
13 ELECTRONIC SUMMONS ISSUED as to New York State Department of Corrections and Community Supervision. (jgo) (Entered: 01/24/2019)
14 ELECTRONIC SUMMONS ISSUED as to New York State Office of Mental Health. (jgo) (Entered: 01/24/2019)
15 ELECTRONIC SUMMONS ISSUED as to Anne Marie McGrath. (jgo) (Entered: 01/24/2019)

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16 NOTICE OF APPEARANCE by Robert Matthew Quackenbush on behalf of P. C., M. G., C. J., M. J., D. R., J. R.. (Quackenbush, Robert) (Entered: 01/24/2019)
17 NOTICE OF APPEARANCE by Elena Maria Landriscina on behalf of P. C., M. G., C. J., M. J., D. R., J. R.. (Landriscina, Elena) (Entered: 01/25/2019)
18 NOTICE OF APPEARANCE by Joshua Morris Rosenthal on behalf of P. C., M. G., C. J., M. J., D. R., J. R.. (Rosenthal, Joshua) (Entered: 01/25/2019)
19 NOTICE OF APPEARANCE by Betsy C. Sterling on behalf of P. C., M. G., C. J., M. J., D. R., J. R.. (Sterling, Betsy) (Entered: 01/25/2019)
20 LETTER MOTION for Conference regarding Plaintiffs' anticipated ex parte motion to proceed anonymously in public filings, and for related relief, addressed to Judge Cathy Seibel from Robert M. Quackenbush of The Legal Aid Society dated January 28, 2019. Document filed by P. C., M. G., C. J., M. J., D. R., J. R..(Quackenbush, Robert) (Entered: 01/28/2019)
21 ORDER denying as moot 20 Letter Motion for Conference: Pre-motion conference requirement waived. Plaintiffs may go ahead and make the motion. (HEREBY ORDERED by Judge Cathy Seibel)(Text Only Order) (Seibel, Cathy) (Entered: 01/28/2019)
22 Gregory Michael O'NeilEX PARTE MOTION to Proceed Anonymously . Document filed by P.C., M.G., C.J., M.J., D.R., J.R. (Attachments: # 1 Memorandum of Law in Support of Plaintiffs' Ex Parte Motion to Proceed Anonymously, # 2 Declaration in Support of Plaintiffs' Ex Parte Motion to Proceed Anonymously, # 3 Proposed Order on Plaintiffs' Ex Parte Motion to Proceed Anonymously)(Short, Stefen) Modified on 2/8/2019 (db). (Entered: 01/28/2019)
23 AFFIDAVIT OF SERVICE. Andrew Cuomo served on 1/28/2019, answer due 2/19/2019. Service was accepted by Denice Gagnon. Document filed by D. R.; C. J.; P. C.; M. G.; M. J.; J. R.. (Rosenthal, Joshua) (Entered: 01/29/2019)
24 AFFIDAVIT OF SERVICE. Anthony J. Annucci served on 1/28/2019, answer due 2/19/2019. Service was accepted by Mark Richter. Document filed by D. R.; C. J.; P. C.; M. G.; M. J.; J. R.. (Rosenthal, Joshua) (Entered: 01/29/2019)
25 AFFIDAVIT OF SERVICE. New York State Department of Corrections and Community Supervision served on 1/28/2019, answer due 2/19/2019. Service was accepted by Mark Richter. Document filed by D. R.; C. J.; P. C.; M. G.; M. J.; J. R.. (Rosenthal, Joshua) (Entered: 01/29/2019)

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26 AFFIDAVIT OF SERVICE. Anne Marie McGrath served on 1/28/2019, answer due 2/19/2019. Service was accepted by Mark Richter. Document filed by D. R.; C. J.; P. C.; M. G.; M. J.; J. R.. (Rosenthal, Joshua) (Entered: 01/29/2019)
27 AFFIDAVIT OF SERVICE. New York State Office of Mental Health served on 1/28/2019, answer due 2/19/2019. Service was accepted by Jesse Snyder. Document filed by D. R.; C. J.; P. C.; M. G.; M. J.; J. R.. (Rosenthal, Joshua) (Entered: 01/29/2019)
28 AFFIDAVIT OF SERVICE. Ann Marie T. Sullivan served on 1/28/2019, answer due 2/19/2019. Service was accepted by Jesse Snyder. Document filed by D. R.; C. J.; P. C.; M. G.; M. J.; J. R.. (Rosenthal, Joshua) (Entered: 01/29/2019)
29 NOTICE OF APPEARANCE by Jane R. Goldberg on behalf of Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan. (Goldberg, Jane) (Entered: 02/01/2019)
30 LETTER MOTION for Extension of Time to respond to Complaint addressed to Judge Cathy Seibel from Jane R. Goldberg dated February 1, 2019. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan.(Goldberg, Jane) (Entered: 02/01/2019)
31 ORDER granting 30 Letter Motion for Extension of Time. Application granted: Defendants time to respond is extended until April 19, 2019. Defendants are also directed to advise the Court no later than February 8, 2019, whether they oppose Plaintiffs' motion to proceed anonymously, (Doc. 22). SO ORDERED. (Signed by Judge Cathy Seibel on 2/1/2019) (ks) (Entered: 02/01/2019)
Set/Reset Deadlines: Anthony J. Annucci answer due 4/19/2019; Andrew Cuomo answer due 4/19/2019; Anne Marie McGrath answer due 4/19/2019; New York State Department of Corrections and Community Supervision answer due 4/19/2019; New York State Office of Mental Health answer due 4/19/2019; Ann Marie T. Sullivan answer due 4/19/2019. Responses due by 2/8/2019. (ks) (Entered: 02/01/2019)
32 NOTICE OF APPEARANCE by Veronica Vela on behalf of M. G., C. J., M. J.. (Vela, Veronica) (Entered: 02/06/2019)
33 NOTICE OF APPEARANCE by Veronica Vela on behalf of P. C., M. G., C. J., M. J., D. R., J. R.. (Vela, Veronica) (Entered: 02/06/2019)

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34 LETTER addressed to Judge Cathy Seibel from Jane R. Goldberg dated February 7, 2019 re: Plaintiffs' ex parte motion to proceed anonymously. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan. (Attachments: # 1 Text of Proposed Order)(Goldberg, Jane) (Entered: 02/07/2019)
35 ORDER ON PLAINTIFFS' EX PARTE MOTION TO PROCEED ANONYMOUSLY granting 22 Motion. ORDERED that Plaintiffs' motion to proceed anonymously be means of the pseudonyms reflected in the caption of this Order is GRANTED; and it is further ORDERED that all public filings will proceed anonymously by means of he pseudonyms reflected in the caption of this Order, and that all other filings will be under seal to the extent they reveal the identities of the Plaintiffs, as further set forth in this Order. The Clerk shall terminate Doc. 22. (Signed by Judge Cathy Seibel on 2/7/2019) (mml) Modified on 2/7/2019 (mml). (Entered: 02/07/2019)
36 NOTICE OF APPEARANCE by Walter G. Ricciardi on behalf of P. C., M. G., C. J., M. J., D. R., J. R.. (Ricciardi, Walter) (Entered: 03/19/2019)
37 LETTER MOTION for Conference re: 1 Complaint, addressed to Judge Cathy Seibel from Jane R. Goldberg dated April 19, 2019. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan.(Goldberg, Jane) (Entered: 04/19/2019)
38 ORDER granting 37 Letter Motion for Conference: Pre-Motion Conference set for 5/13/19 at 11:30 am. Plaintiffs shall state their position, by letter of no more than 3 pages, no later than 5/6/19. (HEREBY ORDERED by Judge Cathy Seibel)(Text Only Order) (Seibel, Cathy) (Entered: 04/19/2019)
39 LETTER RESPONSE to Motion addressed to Judge Cathy Seibel from Joshua Rosenthal dated 05/06/2019 re: 37 LETTER MOTION for Conference re: 1 Complaint, addressed to Judge Cathy Seibel from Jane R. Goldberg dated April 19, 2019. . Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Rosenthal, Joshua) (Entered: 05/06/2019)
40 NOTICE OF APPEARANCE by Jeb Harben on behalf of Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan. (Harben, Jeb) (Entered: 05/13/2019)
Minute Entry for proceedings held before Judge Cathy Seibel: PreMotion Conference held on 5/13/2019. The Court grants Plaintiff(s)

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leave to amend Complaint. Amended Complaint (if Plaintiff chooses to do so) to be submitted by June 3, 2019. Defendants' Motion to Dismiss (or Answer) to be submitted by July 26, 2019; Plaintiffs' opposition (if Motion filed) due August 16, 2019; reply due August 30, 2019. The Court directs Plaintiff(s) to make a demand. Rule 26 disclosures to be submitted by June 24, 2019. Requests for production and interrogatories to be submitted by July 8, 2019. See transcript. (Court Reporter Angela O'Donnell) (wc) (Entered: 05/14/2019)
41 PROPOSED STIPULATION AND ORDER. Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Rosenthal, Joshua) (Entered: 05/15/2019)
42 STIPULATION AND PROTECTIVE ORDER: Regarding procedures to be followed that shall govern the handling of confidential material. (Signed by Judge Cathy Seibel on 5/15/2019) (ks) (Entered: 05/15/2019)
43 NOTICE OF APPEARANCE by Emily A. Vance on behalf of P. C., M. G., C. J., M. J., D. R., J. R.. (Vance, Emily) (Entered: 05/28/2019)
44 LETTER addressed to Judge Cathy Seibel from Jane R. Goldberg dated May 29, 2019 re: Plaintiffs' counsel's request for telephone access. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan.(Goldberg, Jane) (Entered: 05/29/2019)
45 LETTER addressed to Judge Cathy Seibel from Joshua Rosenthal dated 05/29/2019 re: ECF No. 44. Document filed by P. C., M. G., C. J., M. J., D. R., J. R..(Rosenthal, Joshua) (Entered: 05/29/2019)
46 MEMO ENDORSEMENT on re: 44 Letter, filed by Anthony J. Annucci, Andrew Cuomo, New York State Department of Corrections and Community Supervision, Anne Marie McGrath, Ann Marie T. Sullivan, New York State Office of Mental Health. ENDORSEMENT: The Court appreciates the reasons for the general rule, but in order to avoid undue delay in these proceedings and the unnecessary expenditure of counsel's time and resources, an exception just this once is warranted. Essentially for the reasons stated by Plaintiff's counsel, DOCCS is directed to allow Plaintiff's counsel one 30-minute legal call with M.G. and one with P.C. on May 30 or May 31. SO ORDERED. (Signed by Judge Cathy Seibel on 5/29/2019) (mml) (Entered: 05/29/2019)
47 FIRST AMENDED COMPLAINT amending 1 Complaint, against Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan.Document filed by D. R., C. J., P. C., M. G., M. J., J. R.. Related document: 1 Complaint,.(Landriscina, Elena) (Entered: 06/03/2019)

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48 NOTICE OF APPEARANCE by Jamie Marie Noonan Witte on behalf of P. C., M. G., C. J., M. J., D. R., J. R.. (Witte, Jamie) (Entered: 07/09/2019)
49 NOTICE OF APPEARANCE by Lane B. Zuraw on behalf of P. C., M. G., C. J., M. J., D. R., J. R.. (Zuraw, Lane) (Entered: 07/09/2019)
50 LETTER addressed to Judge Cathy Seibel from Jane R. Goldberg dated July 26, 2019 re: Defendants' Motion to Dismiss. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan.(Goldberg, Jane) (Entered: 07/26/2019)
51 LETTER MOTION for Local Rule 37.2 Conference addressed to Judge Cathy Seibel from Elena Landriscina dated 08/02/2019. Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Attachments: # 1 Exhibit Discovery Requests and Correspondence)(Landriscina, Elena) (Entered: 08/02/2019)
52 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, nondispositive pretrial motions, and settlement). Referred to Magistrate Judge Lisa Margaret Smith. Motions referred to Lisa Margaret Smith. (Signed by Judge Cathy Seibel on 8/2/2019) (mml) (Entered: 08/02/2019)
53 ORDER: In order to facilitate the progress of pre-trial discovery of this litigation in a just, speedy and inexpensive manner, to insure compliance with the case management plan, and to prevent the accumulation of unresolved discovery issues, the following procedures will be followed for the resolution of discovery disputes. (As further set forth herein.) (Signed by Magistrate Judge Lisa Margaret Smith on 8/5/2019) (jca) (Entered: 08/05/2019)
54 SCHEDULING NOTICE granting 51 Letter Motion for Local Rule 37.2 Conference. The matter of M.G., et al. v. Cuomo, et al., 19-cv-639 (CS) (LMS), has been scheduled for an in-person status conference before the Hon. Lisa Margaret Smith, United States Magistrate Judge, on Friday, August 9, 2019, at 2:30 p.m., in Courtroom 520. Please note: counsel seeking to reschedule an appearance must have all parties on the line prior to contacting chambers. SO ORDERED. (Status Conference set for 8/9/2019 at 02:30 PM in Courtroom 520, 300 Quarropas Street, White Plains, NY 10601 before Magistrate Judge Lisa Margaret Smith.) (Signed by Magistrate Judge Lisa Margaret Smith on 8/5/2019) (jca) (Entered: 08/05/2019)

08/06/2019 08/09/2019 08/19/2019 08/20/2019
09/02/2019

55 LETTER addressed to Magistrate Judge Lisa M. Smith from Jane R. Goldberg dated Aug. 6, 2019 re: response to Plaintiffs' letter motion. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan.(Goldberg, Jane) (Entered: 08/06/2019)
Minute Entry for proceedings held before Magistrate Judge Lisa Margaret Smith: Status Conference held on 8/9/2019. Elena M. Landriscina, Emily A. Vance, Robert M. Quackenbush, and Joshua M. Rosenthal appearing in person on behalf of Plaintiffs. Jane R. Goldberg appearing in person on behalf of Defendants. Opposition and reply to the motion to dismiss is stayed pending the next conference. Adjourned to August 20, 2019, at 3:00 PM for a telephonic status conference. (Status Conference set for 8/20/2019 at 03:00 PM before Magistrate Judge Lisa Margaret Smith.). (Court Reporter Courtflow) (mde) (Entered: 08/09/2019)
56 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - LETTER MOTION for Conference addressed to Magistrate Judge Lisa M. Smith from Jane R. Goldberg dated Aug. 19, 2019. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan.(Goldberg, Jane) Modified on 10/31/2019 (db). (Entered: 08/19/2019)
Minute Entry for proceedings held before Magistrate Judge Lisa Margaret Smith: Status Conference held on 8/20/2019. Joshua Vogel, Betsy Sterling, Veronica Vela, Lane Zuraw, Jamie Witte, and Emily Vance appearing by telephone on behalf of Plaintiffs. Jane Goldberg and Joshua Applebaum appearing by telephone on behalf of Defendants. Discovery issues addressed on the record; see transcript. Opposition to Defendants' motion to dismiss is stayed pending the next conference. Adjourned to September 10, 2019, at 3:00 PM for a telephonic status conference. (Status Conference set for 9/10/2019 at 03:00 PM before Magistrate Judge Lisa Margaret Smith.). (Court Reporter Courtflow) (mde) (Entered: 08/20/2019)
57 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a telephone conference proceeding held on 08/20/2019 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(O'Donnell, Angela) (Entered: 09/02/2019)

09/02/2019 09/09/2019 09/10/2019 09/10/2019
09/17/2019

58 TRANSCRIPT of Proceedings re: telephone conference held on 8/20/2019 before Magistrate Judge Lisa M. Smith. Court Reporter/Transcriber: Angela O*Donnell, (914) 390-4025. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/23/2019. Redacted Transcript Deadline set for 10/3/2019. Release of Transcript Restriction set for 12/2/2019.(O'Donnell, Angela) (Entered: 09/02/2019)
59 LETTER addressed to Magistrate Judge Lisa M. Smith from Elena Landriscina dated September 9, 2019 re: September 10, 2019 Court Conference. Document filed by P. C., M. G., C. J., M. J., D. R., J. R..(Landriscina, Elena) (Entered: 09/09/2019)
60 LETTER addressed to Magistrate Judge Lisa M. Smith from Jane R. Goldberg dated Sept. 10, 2019 re: Response to Plaintiffs' Status Report. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan.(Goldberg, Jane) (Entered: 09/10/2019)
Minute Entry for proceedings held before Magistrate Judge Lisa Margaret Smith: Status Conference held on 9/10/2019. Betsy C. Sterling, Veronica Vela, Lane B. Zuraw, Emily A. Vance, Stefen R. Short, Robert M. Quackenbush, Elena M. Landriscina, and Joshua M. Rosenthal appearing by telephone on behalf of Plaintiffs. Jane R. Goldberg and Jeb Harben appearing by telephone on behalf of Defendants. Discovery issues resolved on the record; see transcript. Defendants must complete discovery responsive to Requests for Production ## 7 and 12 as identified by Plaintiffs as having been generated on or before July 26, 2019, by 9/30/2019. Defendants must complete discovery responsive to Annucci Interrogatories ## 3 and 4, and Sullivan Interrogatory # 4, by 10/2/2019. Defendants must complete discovery responsive to Requests for Production ## 14, and 21-23, by October 15, 2019. Plaintiffs must serve its opposition to Defendants' motion to dismiss by 11/8/2019. Defendants must serve its reply by 11/22/2019. Adjourned to October 11, 2019, at 2:15 PM, for a telephonic status conference. (Status Conference set for 10/11/2019 at 02:15 PM before Magistrate Judge Lisa Margaret Smith.). (ESL) (Entered: 09/10/2019)
61 LETTER MOTION for Extension of Time to produce privilege log addressed to Magistrate Judge Lisa M. Smith from Jane R. Goldberg dated Sept. 17, 2019. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan.(Goldberg, Jane) (Entered: 09/17/2019)

09/24/2019 09/30/2019 09/30/2019 10/10/2019 10/10/2019 10/11/2019
11/06/2019

62 ORDER granting 61 Letter Motion for Extension of Time to finalize production of privilege log, to October 18, 2019. (HEREBY ORDERED by Magistrate Judge Lisa Margaret Smith)(Text Only Order) (Smith, Lisa) (Entered: 09/24/2019)
63 LETTER MOTION for Extension of Time to Complete Discovery addressed to Magistrate Judge Lisa M. Smith from Jeb Harben dated 9/30/19. Document filed by Anthony J. Annucci.(Harben, Jeb) (Entered: 09/30/2019)
64 ORDER granting 63 Letter Motion for Extension of Time to Complete Discovery, document production as previously ordered to be completed no later than October 7, 2019. (HEREBY ORDERED by Magistrate Judge Lisa Margaret Smith)(Text Only Order) (Smith, Lisa) (Entered: 09/30/2019)
65 LETTER MOTION for Extension of Time to Complete Discovery of priority document requests addressed to Magistrate Judge Lisa M. Smith from Jane R. Goldberg dated Oct. 10, 2019. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan.(Goldberg, Jane) (Entered: 10/10/2019)
66 ORDER granting 65 Letter Motion for Extension of Time to Complete Discovery; date for D to complete production of documents is extended to 10/22/19; date for D to produce privilege log extended to 10/25; Defendants shall continue to provide discovery on a rolling basis until 10/22. P's opposition to D's motion to dismiss is now due 11/18/19, D's reply due 12/2/19. (HEREBY ORDERED by Magistrate Judge Lisa Margaret Smith)(Text Only Order) (Smith, Lisa) (Entered: 10/10/2019)
Minute Entry for proceedings held before Magistrate Judge Lisa Margaret Smith: Status Conference held on 10/11/2019. Veronica Vela, Emily A. Vance, Stefen R. Short, Elena M. Landriscina, and Joshua M. Rosenthal appearing by telephone on behalf of Plaintiffs. Jane R. Goldberg and Jeb Harben appearing by telephone on behalf of Defendants. Adjourned to November 6, 2019, at 3:30 PM for a telephonic status conference. (Status Conference set for 11/6/2019 at 03:30 PM before Magistrate Judge Lisa Margaret Smith) (Court Reporter: Courtflow) (ESL) (Entered: 10/11/2019)
Minute Entry for proceedings held before Magistrate Judge Lisa Margaret Smith: Status Conference held on 11/6/2019. Veronica Vela, Betsy C. Sterling, Elena M. Landriscina, Devon Schwartz, and Joshua M. Rosenthal appearing by telephone on behalf of Plaintiffs. Jane R. Goldberg, Jeb Harben, and Aaron Sansolo appearing by telephone on behalf of Defendants. Discovery continued, pending a deadline on the motion. Depositions stayed, pending the next status conference.

11/07/2019 11/07/2019 11/08/2019
11/12/2019 11/20/2019
11/20/2019 11/20/2019

Adjourned to December 23, 2019, at 3:30 PM for a telephonic status conference. (Status Conference set for 12/23/2019 at 03:30 PM before Magistrate Judge Lisa Margaret Smith) (Court Reporter: Courtflow) (ESL) (Entered: 11/08/2019)
67 LETTER MOTION for Leave to File Excess Pages addressed to Judge Cathy Seibel from Elena Landriscina dated 11/07/2019. Document filed by P. C., M. G., C. J., M. J., D. R., J. R..(Landriscina, Elena) (Entered: 11/07/2019)
68 ORDER granting 67 Letter Motion for Leave to File Excess Pages: Plaintiffs may have 5 extra pages for their opposition brief, and Defendants may have 5 extra pages for their reply brief. (HEREBY ORDERED by Judge Cathy Seibel)(Text Only Order) (Seibel, Cathy) (Entered: 11/07/2019)
69 LETTER MOTION for Extension of Time to meet and confer addressed to Magistrate Judge Lisa M. Smith from Jane R Goldberg dated November 8, 2019. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan.(Goldberg, Jane) (Entered: 11/08/2019)
70 ORDER granting 69 Letter Motion for Extension of Time: SO ORDERED. (Signed by Magistrate Judge Lisa Margaret Smith on 11/12/2019) (jwh) (Entered: 11/12/2019)
71 LETTER MOTION for Extension of Time to File Response/Reply addressed to Judge Cathy Seibel from Jane R. Goldberg and Jeb Harben dated November 20, 2019. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan.(Goldberg, Jane) (Entered: 11/20/2019)
72 LETTER RESPONSE to Motion addressed to Judge Cathy Seibel from Joshua Rosenthal dated 11/20/2019 re: 71 LETTER MOTION for Extension of Time to File Response/Reply addressed to Judge Cathy Seibel from Jane R. Goldberg and Jeb Harben dated November 20, 2019. . Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Rosenthal, Joshua) (Entered: 11/20/2019)
73 ORDER granting in part and denying in part 71 Letter Motion for Extension of Time to File Response/Reply: Reply due 12/16/19. No further extensions. (HEREBY ORDERED by Judge Cathy Seibel)(Text Only Order) (Seibel, Cathy) (Entered: 11/20/2019)

11/21/2019 11/21/2019
11/22/2019
12/10/2019 12/10/2019 12/16/2019 12/16/2019

74 PROPOSED ORDER FOR WITHDRAWAL OF ATTORNEY. Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Zuraw, Lane) (Entered: 11/21/2019)
75 NOTICE AND ORDER FOR WITHDRAWAL OF COUNSEL: PLEASE TAKE NOTICE that, upon my annexed declaration, and subject to the approval of the Court, I hereby withdraw as counsel for Plaintiffs and shall be removed from the Case Management/Electronic Case Files (CM/ECF) notification list in the above-captioned matter. My colleagues Walter Ricciardi and Emily Vance - both from Paul, Weiss, Rifkind, Wharton & Garrison LLP - will continue to represent Plaintiffs in this proceeding. Attorney Lane B. Zuraw terminated. (Signed by Judge Cathy Seibel on 11/21/2019) (mml) (Entered: 11/21/2019)
76 NOTICE AND ORDER FOR WITHDRAWAL OF COUNSEL: PLEASE TAKE NOTICE that, upon my annexed declaration, and subject to the approval of the Court, I hereby withdraw as counsel for Plaintiffs and shall be removed from the Case Management/Electronic Case Files (CM/ECF) notification list in the above-captioned matter. My colleagues Walter Ricciardi and Emily Vance - both from Paul, Weiss, Rifkind, Wharton & Garrison LLP - will continue to represent Plaintiffs in this proceeding. SO ORDERED. (Signed by Magistrate Judge Lisa Margaret Smith on 11/21/2019) (rj) (Entered: 11/22/2019)
77 CONSENT LETTER MOTION to Seal Document addressed to Judge Cathy Seibel from Walter Ricciardi dated December 10, 2019. Document filed by P. C., M. G., C. J., M. J., D. R., J. R..(Ricciardi, Walter) (Entered: 12/10/2019)
78 ORDER granting 77 Motion to Seal Document: The specified exhibits may be filed under seal, and the specified declaration may be filed in redacted form, essentially for the reasons articulated by counsel. (HEREBY ORDERED by Judge Cathy Seibel)(Text Only Order) (Seibel, Cathy) (Entered: 12/10/2019)
79 MOTION to Dismiss the First Amended Class Action Complaint. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan.(Goldberg, Jane) (Entered: 12/16/2019)
80 MEMORANDUM OF LAW in Support re: 79 MOTION to Dismiss the First Amended Class Action Complaint. . Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan. (Goldberg, Jane) (Entered: 12/16/2019)

12/16/2019 12/16/2019 12/16/2019

81 DECLARATION of Rachael Seguin in Support re: 79 MOTION to Dismiss the First Amended Class Action Complaint.. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan. (Attachments: # 1 Exhibit)(Goldberg, Jane) (Entered: 12/16/2019)
82 MEMORANDUM OF LAW in Opposition re: 79 MOTION to Dismiss the First Amended Class Action Complaint. . Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Vance, Emily) (Entered: 12/16/2019)
83 DECLARATION of Joshua M. Rosenthal in Opposition re: 79 MOTION to Dismiss the First Amended Class Action Complaint.. Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Attachments: # 1 Exhibit 1 Filed Under Seal, # 2 Exhibit 2 - Filed Under Seal, # 3 Exhibit 3 - Filed Under Seal, # 4 Exhibit 4 - Filed Under Seal, # 5 Exhibit 5 - Filed Under Seal, # 6 Exhibit 6 - Filed Under Seal, # 7 Exhibit 7 - Filed Under Seal, # 8 Exhibit 8 - Filed Under Seal, # 9 Exhibit 9 - Email, # 10 Exhibit 10 Filed Under Seal, # 11 Exhibit 11 - Filed Under Seal, # 12 Exhibit 12 Email, # 13 Exhibit 13 - Filed Under Seal, # 14 Exhibit 14 - Filed Under Seal, # 15 Exhibit 15 - Filed Under Seal, # 16 Exhibit 16 - Filed Under Seal, # 17 Exhibit 17 - Filed Under Seal, # 18 Exhibit 18 - Email, # 19 Exhibit 19 - Filed Under Seal, # 20 Exhibit 20 - Filed Under Seal, # 21 Exhibit 21 - Filed Under Seal, # 22 Exhibit 22 - Filed Under Seal, # 23 Exhibit 23 - Filed Under Seal, # 24 Exhibit 24 - Filed Under Seal, # 25 Exhibit 25 - Filed Under Seal, # 26 Exhibit 26 - Filed Under Seal, # 27 Exhibit 27 - Filed Under Seal, # 28 Exhibit 28 - Filed Under Seal, # 29 Exhibit 29 - Filed Under Seal, # 30 Exhibit 30 - Filed Under Seal, # 31 Exhibit 31 - Filed Under Seal, # 32 Exhibit 32 - Filed Under Seal, # 33 Exhibit 33 - Filed Under Seal, # 34 Exhibit 34 - Web Page, # 35 Exhibit 35 - Filed Under Seal, # 36 Exhibit 36 - Filed Under Seal, # 37 Exhibit 37 - Filed Under Seal, # 38 Exhibit 38 - Filed Under Seal, # 39 Exhibit 39 - Filed Under Seal, # 40 Exhibit 40 - Filed Under Seal, # 41 Exhibit 41 - Filed Under Seal, # 42 Exhibit 42 - Filed Under Seal, # 43 Exhibit 43 - Web Page, # 44 Exhibit 44 - Filed Under Seal, # 45 Exhibit 45 - Filed Under Seal, # 46 Exhibit 46 - Filed Under Seal, # 47 Exhibit 47 - Filed Under Seal, # 48 Exhibit 48 - Filed Under Seal, # 49 Exhibit 49 - Filed Under Seal, # 50 Exhibit 50 - Filed Under Seal, # 51 Exhibit 51 - Filed Under Seal, # 52 Exhibit 52 - Filed Under Seal, # 53 Exhibit 53 - Filed Under Seal, # 54 Exhibit 54 - Filed Under Seal, # 55 Exhibit 55 - Filed Under Seal, # 56 Exhibit 56 - Audit Report, # 57 Exhibit 57 - Filed Under Seal, # 58 Exhibit 58 - Filed Under Seal, # 59 Exhibit 59 - Filed Under Seal, # 60 Exhibit 60 - Filed Under Seal, # 61 Exhibit 61 - Filed Under Seal, # 62 Exhibit 62 - Filed Under Seal, # 63 Exhibit 63 - Filed Under Seal, # 64 Exhibit 64 - Filed Under Seal, # 65 Exhibit 65 - Filed Under Seal, # 66 Exhibit 66 - Filed Under Seal,

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# 67 Exhibit 67 - Filed Under Seal, # 68 Exhibit 68 - Filed Under Seal, # 69 Exhibit 69 - Filed Under Seal, # 70 Exhibit 70 - Filed Under Seal, # 71 Exhibit 71 - Annucci's Supplemental Response to Plaintiffs' Interrogatories Nos. 3 and 4, # 72 Exhibit 72 - Filed Under Seal, # 73 Exhibit 73 - Discharge Planning Policy, # 74 Exhibit 74 - Housing Referrals Policy, # 75 Exhibit 75 - Pre-Release Planning Policy, # 76 Exhibit 76 - Community Supervision Handbook, # 77 Exhibit 77 Filed Under Seal, # 78 Exhibit 78 - Filed Under Seal, # 79 Exhibit 79 Filed Under Seal, # 80 Exhibit 80 - Filed Under Seal, # 81 Exhibit 81 Filed Under Seal, # 82 Exhibit 82 - Filed Under Seal, # 83 Exhibit 83 Filed Under Seal, # 84 Exhibit 84 - Filed Under Seal, # 85 Exhibit 85 Filed Under Seal, # 86 Exhibit 86 - Filed Under Seal, # 87 Exhibit 87 Transcript, # 88 Exhibit 88 - Email, # 89 Exhibit 89 - Filed Under Seal, # 90 Exhibit 90 - Filed Under Seal, # 91 Exhibit 91 - Sullivan's Supplemental Response to Plaintiffs' Interrogatory No. 4, # 92 Exhibit 92 - Filed Under Seal, # 93 Exhibit 93 - Email, # 94 Exhibit 94 - DOCCS Directive No. 8306, # 95 Exhibit 95 - DOCCS Request for Application)(Vance, Emily) (Entered: 12/16/2019)
84 DECLARATION of Robert M. Quackenbush in Opposition re: 79 MOTION to Dismiss the First Amended Class Action Complaint.. Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Attachments: # 1 Exhibit 96 - DOCCS Memorandum, # 2 Exhibit 97 - Filed Under Seal, # 3 Exhibit 98 - Email, # 4 Exhibit 99 - DOCCS Memorandum, # 5 Exhibit 100 - Letter, # 6 Exhibit 101 - Filed Under Seal, # 7 Exhibit 102 - Filed Under Seal)(Vance, Emily) (Entered: 12/16/2019)
85 DECLARATION of D.R. in Opposition re: 79 MOTION to Dismiss the First Amended Class Action Complaint.. Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Attachments: # 1 Exhibit 1- Filed Under Seal, # 2 Exhibit 2 - Filed Under Seal)(Vance, Emily) (Entered: 12/16/2019)
86 DECLARATION of P.C. in Opposition re: 79 MOTION to Dismiss the First Amended Class Action Complaint.. Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Attachments: # 1 Exhibit 1 - Filed Under Seal, # 2 Exhibit 2 - Filed Under Seal, # 3 Exhibit 3 - Filed Under Seal)(Vance, Emily) (Entered: 12/16/2019)
87 DECLARATION of C.J. in Opposition re: 79 MOTION to Dismiss the First Amended Class Action Complaint.. Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Attachments: # 1 Exhibit 1 - Filed Under Seal, # 2 Exhibit 2 - Filed Under Seal, # 3 Exhibit 3 - Filed Under Seal, # 4 Exhibit 4 - Filed Under Seal, # 5 Exhibit 5 - Filed Under Seal, # 6 Exhibit 6 - Filed Under Seal)(Vance, Emily) (Entered: 12/16/2019)
88 DECLARATION of M.J. in Opposition re: 79 MOTION to Dismiss the First Amended Class Action Complaint.. Document filed by P. C., M. G.,

12/16/2019 12/16/2019
12/16/2019
12/16/2019
12/16/2019
12/18/2019 12/20/2019 12/20/2019 12/23/2019

C. J., M. J., D. R., J. R.. (Attachments: # 1 Exhibit 1 - Filed Under Seal)(Vance, Emily) (Entered: 12/16/2019)
89 DECLARATION of M.G. in Opposition re: 79 MOTION to Dismiss the First Amended Class Action Complaint.. Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Vance, Emily) (Entered: 12/16/2019)
90 REPLY MEMORANDUM OF LAW in Support re: 79 MOTION to Dismiss the First Amended Class Action Complaint. . Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan. (Goldberg, Jane) (Entered: 12/16/2019)
91 DECLARATION of Wendy Vogel in Support re: 79 MOTION to Dismiss the First Amended Class Action Complaint.. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan. (Goldberg, Jane) (Entered: 12/16/2019)
92 DECLARATION of Ana Enright in Support re: 79 MOTION to Dismiss the First Amended Class Action Complaint.. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan. (Attachments: # 1 Exhibit)(Goldberg, Jane) (Entered: 12/16/2019)
93 LETTER addressed to Judge Cathy Seibel from Jane R. Goldberg dated December 16, 2019 re: Courtesy copies of Defendants' Motion to Dismiss. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan.(Goldberg, Jane) (Entered: 12/16/2019)
94 SEALED DOCUMENT placed in vault.(alo) (Entered: 12/18/2019)
95 MOTION for Betsy C. Sterling to Withdraw as Attorney . Document filed by P. C., M. G., C. J., M. J., D. R., J. R..(Sterling, Betsy) (Entered: 12/20/2019)
96 LETTER addressed to Magistrate Judge Lisa M. Smith from Elena Landriscina dated 12/20/2019 re: December 23, 2019 Conference. Document filed by P. C., M. G., C. J., M. J., D. R., J. R..(Landriscina, Elena) (Entered: 12/20/2019)
97 MEMO ENDORSEMENT on 95 granting NOTICE AND ORDER FOR WITHDRAWAL OF COUNSEL. ENDORSEMENT: SO ORDERED. Attorney Betsy C. Sterling terminated. (Signed by Judge Cathy Seibel on 12/23/2019) (ama) (Entered: 12/23/2019)

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98 LETTER addressed to Magistrate Judge Lisa M. Smith from Jane R. Goldberg dated December 23, 2019 re: Plaintiffs' request for additional discovery. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan.(Goldberg, Jane) (Entered: 12/23/2019)
Minute Entry for proceedings held before Magistrate Judge Lisa Margaret Smith: Status Conference held on 12/23/2019. Elena M. Landriscina, Devon Schwartz, Joshua M. Rosenthal, and Walter Ricciardi appearing by telephone on behalf of Plaintiffs. Jane R. Goldberg and Jeb Harben appearing by telephone on behalf of Defendants. Parties are instructed to continue in the discovery process. Plaintiffs may serve up to 50 interrogatories, including subparts, by 1/17/2020 that are directed to the issue of the new directive to see if it can be clarified without further discovery. Defendants must respond by 2/17/2020. Adjourned to February 21, 2020, at 3:00 PM, for a telephonic status conference. (Status Conference set for 2/21/2020 at 03:00 PM before Magistrate Judge Lisa Margaret Smith) (Court Reporter: Courtflow) (ESL) (Entered: 12/26/2019)
99 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 5/13/2019 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(O'Donnell, Angela) (Entered: 01/21/2020)
100 TRANSCRIPT of Proceedings re: conference held on 5/13/2019 before Judge Cathy Seibel. Court Reporter/Transcriber: Angela O*Donnell, (914) 390-4025. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/11/2020. Redacted Transcript Deadline set for 2/21/2020. Release of Transcript Restriction set for 4/20/2020.(O'Donnell, Angela) (Entered: 01/21/2020)
101 LETTER MOTION for Leave to File Sur-Reply addressed to Judge Cathy Seibel from Joshua Rosenthal dated 01/29/2020. Document filed by P. C., M. G., C. J., M. J., D. R., J. R..(Rosenthal, Joshua) (Entered: 01/29/2020)
102 ORDER deferring ruling on 101 Letter Motion for Leave to File Document; Defendants shall explain by letter, no later than 2/3/20, their reasons for opposing Plaintiffs' request to file a sur-reply. (HEREBY

02/03/2020
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02/26/2020

ORDERED by Judge Cathy Seibel)(Text Only Order) (Seibel, Cathy) (Entered: 01/29/2020)
103 LETTER RESPONSE to Motion addressed to Judge Cathy Seibel from Jane R. Goldberg and Jeb Harben dated February 3, 2020 re: 101 LETTER MOTION for Leave to File Sur-Reply addressed to Judge Cathy Seibel from Joshua Rosenthal dated 01/29/2020. Defendants also request an opportunity to respond to a sur-reply should the Court grant Plaintiffs' request. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan..(Goldberg, Jane) (Entered: 02/03/2020)
104 ORDER granting 101 Letter Motion for Leave to File Document: Both sides seem to have made their points in their letters, but if Plaintiffs wish to file a sur-reply, they may do so no later than 3/2/20 (two weeks after they get their interrogatory responses). The sur-reply may not exceed ten (10) double-spaced pages. Defendants can thereafter respond, in eight (8) or fewer double-spaced pages, no later than 3/16/20. (HEREBY ORDERED by Judge Cathy Seibel)(Text Only Order) (Seibel, Cathy) (Entered: 02/03/2020)
105 LETTER MOTION for Extension of Time to Meet and Confer addressed to Magistrate Judge Lisa M. Smith from Joshua Rosenthal dated 02/04/2020. Document filed by P. C., M. G., C. J., M. J., D. R., J. R...(Rosenthal, Joshua) (Entered: 02/04/2020)
106 ORDER granting 105 Letter Motion for Extension of Time, but the meet and confer must occur no later than February 17, 2020. (HEREBY ORDERED by Magistrate Judge Lisa Margaret Smith)(Text Only Order) (Smith, Lisa) (Entered: 02/05/2020)
107 RE-SCHEDULING NOTICE: The matter of M.G., et al. v. Cuomo, et al., 19-cv-639 (CS) (LMS), has been rescheduled from a telephonic status conference on Friday, February 21, 2020, at 3:00 PM, before the Hon. Lisa Margaret Smith, United States Magistrate Judge, to a telephonic status conference on Thursday, February 27, 2020, at 11:30 AM. Plaintiff's counsel is to have defense counsel on the line when contacting Chambers. Please Note: Counsel seeking to reschedule an appearance must have all parties on the line prior to contacting Chambers. Telephonic Status Conference set for 2/27/2020 at 11:30 AM before Magistrate Judge Lisa Margaret Smith. (Signed by Magistrate Judge Lisa Margaret Smith on 2/19/2020) (rj) (Entered: 02/19/2020)
108 LETTER MOTION for Extension of Time to File Response/Reply as to 90 Reply Memorandum of Law in Support of Motion, addressed to Judge Cathy Seibel from Elena Landriscina dated February 26, 2020.

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03/06/2020 03/13/2020 03/13/2020

Document filed by P. C., M. G., C. J., M. J., D. R., J. R...(Landriscina, Elena) (Entered: 02/26/2020)
109 ORDER granting 108 Letter Motion for Extension of Time to File Response/Reply: Plaintiffs' sur-reply due 3/13/20. Defendants' responsedue 3/27/20. (HEREBY ORDERED by Judge Cathy Seibel)(Text Only Order) (Seibel, Cathy) (Entered: 02/26/2020)
110 LETTER addressed to Magistrate Judge Lisa M. Smith from Joshua Rosenthal dated 2/26/2020 re: February 27, 2020 Conference. Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Attachments: # 1 Exhibit A - Plaintiffs' Interrogatory Definitions and Instructions, # 2 Exhibit B Defendant Annucci's Responses, # 3 Exhibit C - Defendant Sullivan's Responses).(Rosenthal, Joshua) (Entered: 02/26/2020)
Minute Entry for proceedings held before Magistrate Judge Lisa Margaret Smith: Status Conference held on 2/27/2020. Discovery issues resolved on the record; see transcript. Elena M. Landriscina, Stefen R. Short, Emily A. Vance, and Joshua M. Rosenthal appearing by telephone on behalf of Plaintiffs. Jane R. Goldberg, Jeb Harben, and Aaron Sansolo appearing by telephone on behalf of Defendants. Discovery issues resolved on the record; see transcript. Objection overruled with regards to Annucci Interrogatory No. 39; Defendants need to provide census for initial sentence date, maximum expiration date, and reason for continuing to be held. Objections sustained with regards to Annucci Interrogatory No. 40, and Sullivan Interrogatories Nos. 9 and 22. Adjourned to March 23, 2020, at 11:00 AM, for a telephonic status conference. (Status Conference set for 3/23/2020 at 11:00 AM before Magistrate Judge Lisa Margaret Smith) (Court Reporter: Courtflow) (ESL) (Entered: 02/27/2020)
111 LETTER addressed to Judge Cathy Seibel from Robert M. Quackenbush of The Legal Aid Society dated March 6, 2020 re: Corrected URLs for DOCCS Annual Reports in the Declaration of Robert M. Quackenbush in Opposition to Defendants' Motion to Dismiss (ECF No. 84). Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Attachments: # 1 Exhibit A - DOCCS IGP 2009 Annual Report, # 2 Exhibit B - DOCCS IGP 2010 Annual Report, # 3 Exhibit C - DOCCS IGP 2011 Annual Report, # 4 Exhibit D - DOCCS IGP 2013 Annual Report).(Quackenbush, Robert) (Entered: 03/06/2020)
112 LETTER MOTION to Seal addressed to Judge Cathy Seibel from Walter Ricciardi dated March 13, 2020. Document filed by P. C., M. G., C. J., M. J., D. R., J. R...(Ricciardi, Walter) (Entered: 03/13/2020)
113 REPLY MEMORANDUM OF LAW in Opposition re: 79 MOTION to Dismiss the First Amended Class Action Complaint. (Sur-Reply Memorandum of Law). Document filed by P. C., M. G., C. J., M. J., D. R., J. R...(Ricciardi, Walter) (Entered: 03/13/2020)

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114 DECLARATION of Joshua M. Rosenthal in Opposition re: 79 MOTION to Dismiss the First Amended Class Action Complaint.. Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Attachments: # 1 Exhibit 103Annucci's Responses to Plaintiffs' Second Interrogatories, # 2 Exhibit 104-Sullivan's Responses to Plaintiffs' Second Interrogatories, # 3 Exhibit 105-Exhibit to Annucci Responses (Redacted), # 4 Exhibit 106-P.C. Records, # 5 Exhibit 107-Email (Redacted), # 6 Exhibit 108Email, # 7 Exhibit 109-Email, # 8 Exhibit 110-DOCCS Directive, # 9 Exhibit 111-Policy re: Housing Referrals - SMI, # 10 Exhibit 112Email, # 11 Exhibit 113-Email (Redacted), # 12 Exhibit 114-Sullivan's Supplemental Responses to Plaintiffs' Second Interrogatories, # 13 Exhibit 115-Spreadsheet, # 14 Exhibit 116-Annucci's Supplemental Responses to Plaintiffs' Second Interrogatories, # 15 Exhibit 117-Email and Attachments (Redacted)).(Ricciardi, Walter) (Entered: 03/13/2020)
115 ***SELECTED PARTIES***DECLARATION of Joshua M. Rosenthal in Opposition re: 79 MOTION to Dismiss the First Amended Class Action Complaint.. Document filed by D. R., C. J., P. C., M. G., M. J., J. R., Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan. (Attachments: # 1 Exhibit 105-Exhibit to Annucci Responses, # 2 Exhibit 106-P.C. Records, # 3 Exhibit 107-Email, # 4 Exhibit 108-Email, # 5 Exhibit 109-Email, # 6 Exhibit 112-Email, # 7 Exhibit 113-Email, # 8 Exhibit 117-Email and Attachments)Motion or Order to File Under Seal: 112 .(Ricciardi, Walter) (Entered: 03/13/2020)
116 ORDER granting 112 Letter Motion to Seal: The agreed-upon documents may be filed in redacted form or under seal. As for 108, 109 and 112, I agree with Plaintiffs, essentially for the reasons they state. I recognize the risk Corrections officials take on a daily basis in dealing with a population that includes potentially volatile individuals, and I don't fault defense counsel for taking the position they took, but a generalized fear that some plaintiff or person aligned with plaintiffs might react badly to a document does not suffice to overcome the presumption that judicial documents should be public. Absent some specific reason to fear retribution or other injury, the documents should be public except for the agreed-upon redactions. (HEREBY ORDERED by Judge Cathy Seibel)(Text Only Order) (Seibel, Cathy): (Entered: 03/16/2020)
117 DECLARATION of Joshua M. Rosenthal in Opposition re: 79 MOTION to Dismiss the First Amended Class Action Complaint.. Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Attachments: # 1 Exhibit 108Email (Redacted), # 2 Exhibit 109-Email (Redacted), # 3 Exhibit 112Email (Redacted)).(Ricciardi, Walter) (Entered: 03/17/2020)
118 LETTER addressed to Magistrate Judge Lisa M. Smith from Elena Landriscina dated March 18, 2020 re: March 23, 2020 Conference.

03/20/2020 03/21/2020 03/23/2020
03/27/2020 03/27/2020

Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Attachments: # 1 Exhibit Plaintiffs' Requests for Production Definitions and Instructions; Request For Production 30; and Defendants' Initial Response to Request for Production 30).(Landriscina, Elena) (Entered: 03/18/2020)
119 LETTER addressed to Magistrate Judge Lisa M. Smith from Jane R. Goldberg dated March 20, 2020 re: Plaintiffs' letter regarding RFP 30. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan..(Goldberg, Jane) (Entered: 03/20/2020)
NOTICE of TeleConference Information. The upcoming teleconference in this matter is now organized by Chambers of the Hon. Lisa Margaret Smith. To access the teleconference, please follow these directions: (1) Dial the Meeting Number: (877) 336-1831; (2) Enter the Access Code: 2751700#; (3) Press pound (#) to enter the teleconference as a guest; (4) Enter the Security Code: 0639#. Please note that if you arrive to the teleconference before Chambers, you must wait on hold between Steps 3 and 4. Once Chambers enters the teleconference, you will then be prompted to enter the Security Code. (ESL) (Entered: 03/21/2020)
Minute Entry for proceedings held before Magistrate Judge Lisa Margaret Smith: Status Conference held on 3/23/2020. Elena M. Landriscina, Joshua M. Rosenthal, Walter G. Ricciardi, Emily A. Vance, Robert Quackenbush, Veronica Vela, Stefen R. Short, Chantel Hannah, and Sam Margolis appearing by telephone on behalf of Plaintiffs. Jane R. Goldberg, Jeb Harben, and Aaron Sansolo appearing by telephone on behalf of Defendants. Defendants' objections to RFP No. 30 sustained. All outstanding discovery deadlines extended for 30 days. Adjourned to May 1, 2020, at 10:30 AM, for a telephonic status conference. (Status Conference set for 5/1/2020 at 10:30 AM before Magistrate Judge Lisa Margaret Smith) (Court Reporter: AT&T TeleConference System) (ESL) (Entered: 03/23/2020)
120 MEMORANDUM OF LAW in Support re: 79 MOTION to Dismiss the First Amended Class Action Complaint. Defendants' Memorandum of law in Response to Plaintiffs' Sur-Reply. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan..(Goldberg, Jane) (Entered: 03/27/2020)
121 DECLARATION of Jeb Harben in Support re: 79 MOTION to Dismiss the First Amended Class Action Complaint.. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York

04/09/2020 04/09/2020 04/23/2020
05/01/2020 05/01/2020

State Office of Mental Health, Ann Marie T. Sullivan. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit).(Goldberg, Jane) (Entered: 03/27/2020)
122 PROPOSED ORDER FOR WITHDRAWAL OF ATTORNEY. Document filed by P. C., M. G., C. J., M. J., D. R., J. R...(Witte, Jamie) (Entered: 04/09/2020)
123 ORDER: The Clerk shall terminate Ms. Witte as counsel for Plaintiffs. (HEREBY ORDERED by Judge Cathy Seibel) (Text Only Order) (Seibel, Cathy) Transmission to Office of the Clerk of Court for processing. (Entered: 04/09/2020)
NOTICE of AT&T Teleconference Information. The upcoming teleconference in this matter is now hosted by Chambers. To access the teleconference, please follow these directions: (1) Dial the Meeting Number: (877) 336-1831; (2) Enter the Access Code: 2751700#; (3) Press pound (#) to enter the teleconference as a guest; (4) Enter the Security Code: 0639#. Please note that if you arrive to the teleconference before Chambers, you must wait on hold between Steps 3 and 4. Once Chambers enters the teleconference, you will then be prompted to enter the Security Code. Should legal counsel experience any technical issues with the teleconferencing system, please contact Chambers at (914) 3904130. Members of the press and public may call the same number, but will not be permitted to speak during the conference. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the court. Please note: counsel seeking to reschedule an appearance must have all parties on the line prior to contacting Chambers. (ESL) (Entered: 04/24/2020)
Minute Entry for proceedings held before Magistrate Judge Lisa Margaret Smith: Status Conference held on 5/1/2020. Elena M. Landriscina, Joshua M. Rosenthal, Emily A. Vance, Stefen R. Short, Chantel Hannah, Sam Margolis, and Crystal Parker appearing by telephone on behalf of Plaintiffs. Jeb Harben and Aaron Sansolo appearing by telephone on behalf of Defendants. Adjourned to June 5, 2020, at 10:15 AM, for a telephonic status conference. (Status Conference set for 6/5/2020 at 10:15 AM before Magistrate Judge Lisa Margaret Smith) (Court Reporter AT&T Teleconference System) (ESL) (Entered: 05/01/2020)
NOTICE of AT&T Teleconference Information. The next conference in this matter will be hosted by Chambers of the Hon. Lisa Margaret Smith. All persons participating in the upcoming telephonic conference may do

05/08/2020 06/05/2020 07/17/2020
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so by using the AT&T Teleconference Information previously published to the docket sheet. (ESL) (Entered: 05/01/2020)
124 LETTER addressed to Judge Cathy Seibel from Jane R. Goldberg dated May 8, 2020 re: status of a named plaintiff. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan..(Goldberg, Jane) (Entered: 05/08/2020)
Minute Entry for proceedings held before Magistrate Judge Lisa Margaret Smith: Status Conference held on 6/5/2020. Elena M. Landriscina, Joshua M. Rosenthal, Emily A. Vance, Chantel Hannah, Sam Margolis, Veronica Vela, and Robert M. Quackenbush appearing by telephone on behalf of Plaintiffs. Jeb Harben, Jane R. Goldberg, and Aaron Sansolo appearing by telephone on behalf of Defendants. Adjourned to July 17, 2020, at 10:15 AM, for a telephonic status conference. (Status Conference set for 7/17/2020 at 10:15 AM before Magistrate Judge Lisa Margaret Smith) (Court Reporter: AT&T Teleconference System) (ESL) (Entered: 06/05/2020)
Minute Entry for proceedings held before Magistrate Judge Lisa Margaret Smith: Status Conference held on 7/17/2020. Elena M. Landriscina, Joshua M. Rosenthal, Emily A. Vance, Veronica Vela, and Stefan R. Short appearing by telephone on behalf of Plaintiffs. Jeb Harben, Jane R. Goldberg, and Aaron Sansolo appearing by telephone on behalf of Defendants. Adjourned to August 14, 2020, at 10:30 AM, for a telephonic status conference. All persons participating in the next conference may do so by using the AT&T Teleconference Information previously posted to the docket sheet. (Status Conference set for 8/14/2020 at 10:30 AM before Magistrate Judge Lisa Margaret Smith) (Court Reporter: AT&T Teleconference System) (ESL) (Entered: 07/17/2020)
125 LETTER addressed to Magistrate Judge Lisa M. Smith from Walter G. Ricciardi dated August 10, 2020 re: Pre-Motion Letter for Plaintiffs' Anticipated Motion to Amend the First Amended Complaint. Document filed by P. C., M. G., C. J., M. J., D. R., J. R.. (Attachments: # 1 Exhibit A-Second Amended Class Action Complaint, # 2 Exhibit BRedline).(Ricciardi, Walter) (Entered: 08/10/2020)
126 LETTER addressed to Magistrate Judge Lisa M. Smith from Jeb Harben dated 8/12/2020 re: Plaintiffs' 8/11/2020 Pre-Motion Letter. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health..(Harben, Jeb) (Entered: 08/12/2020)

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127 NOTICE OF APPEARANCE by Crystal Lohmann Parker on behalf of P. C., M. G., C. J., M. J., D. R., J. R...(Parker, Crystal) (Entered: 08/12/2020)
128 NOTICE OF APPEARANCE by Samuel Margolis on behalf of P. C., M. G., C. J., M. J., D. R., J. R...(Margolis, Samuel) (Entered: 08/12/2020)
129 MEMO ENDORSEMENT on re: 126 Letter, filed by Anthony J. Annucci, Andrew Cuomo, New York State Department of Corrections and Community Supervision, Anne Marie McGrath, New York State Office of Mental Health. ENDORSEMENT: Plaintiffs' letter DE 125 is deemed to be a motion to amend the Complaint.Defendants may submit opposition to the motion, limited to five single spaced pages, no later than 5 pm on August 21, 2020. Plaintiffs may submit a reply, limited to two single spaced pages, no later than 9 am on August 24, 2020. The telephone conference currently scheduled for August 14, 2020, at 10:30, is hereby adjourned to August 25, 2020, at 12:15 pm. (Responses due by 8/21/2020, Replies due by 8/24/2020., Telephone Conference set for 8/25/2020 at 12:15 PM before Magistrate Judge Lisa Margaret Smith.) (Signed by Magistrate Judge Lisa Margaret Smith on 8/12/2020) (cf) Modified on 8/12/2020 (cf). (Entered: 08/12/2020)
130 LETTER addressed to Magistrate Judge Lisa M. Smith from Jeb Harben & Jane R. Goldberg dated August 21, 2020 re: Plaintiffs' request to file a second amended complaint. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan..(Goldberg, Jane) (Entered: 08/21/2020)
131 LETTER addressed to Magistrate Judge Lisa M. Smith from Walter G. Ricciardi dated August 24, 2020 re: Reply in Further Support of Plaintiffs' Motion for Leave to Amend 125 . Document filed by P. C., M. G., C. J., M. J., D. R., J. R...(Ricciardi, Walter) (Entered: 08/24/2020)
Minute Entry for proceedings held before Magistrate Judge Lisa Margaret Smith: Status Conference held on 8/25/2020. Elena M. Landriscina, Joshua M. Rosenthal, Emily A. Vance, and Stefan R. Short appearing by telephone on behalf of Plaintiffs. Jeb Harben, Jane R. Goldberg, and Aaron Sansolo appearing by telephone on behalf of Defendants. Adjourned without date. (Court Reporter: AT&T Teleconference System) (ESL) (Entered: 08/25/2020)
132 ORDER re: 125 Letter, filed by P. C., M. J., J. R., C. J., D. R., M. G. Plaintiffs' motion to amend their complaint (ECF No. 125) is GRANTED. Plaintiffs are directed to serve and file their Second Amended Complaint within seven (7) days of the date hereof. The Clerk of the Court is respectfully directed to terminate the motion at ECF No.

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125. SO ORDERED. (Signed by Magistrate Judge Lisa Margaret Smith on 8/26/2020) (kv) (Entered: 08/26/2020)
133 SCHEDULING NOTICE: The matter of M. G., et al. v. Cuomo, et al., 19-cv-639 (CS) (LMS), has been scheduled from a telephonic status conference before the Hon. Lisa Margaret Smith, United States Magistrate Judge, on Thursday, September 3, 2020, at 12:15 PM. All persons participating in the next status conference may do so by accessing the AT&T Teleconference Information previously published to the docket sheet. Please Note: Counsel seeking to reschedule an appearance must have all parties on the line prior to contacting Chambers. Telephone Conference set for 9/3/2020 at 12:15 PM before Magistrate Judge Lisa Margaret Smith. (Signed by Magistrate Judge Lisa Margaret Smith on 8/27/2020) (nb) (Entered: 08/27/2020)
134 SECOND AMENDED COMPLAINT amending 47 Amended Complaint, against Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan.Document filed by D. R., C. J., P. C., M. G., M. J., J. R., D. H., S. D., W. P.. Related document: 47 Amended Complaint,. (Attachments: # 1 Exhibit Order Granting Leave to Amend).(Landriscina, Elena) (Entered: 08/27/2020)
135 NOTICE OF APPEARANCE by Stefen Russell Short on behalf of S. D., D. H., W. P...(Short, Stefen) (Entered: 08/27/2020)
Minute Entry for proceedings held before Magistrate Judge Lisa Margaret Smith: Status Conference held on 9/3/2020. Elena M. Landriscina, Joshua M. Rosenthal, Stefan R. Short, and Walter G. Ricciardi appearing by telephone on behalf of Plaintiffs. Jeb Harben appearing by telephone on behalf of Defendants. The parties are directed to continue with paper discovery. The parties are to submit a proposed order and submit to the Court for review. Adjourned without date. (Court Reporter: AT&T Teleconference System) (ESL) (Entered: 09/04/2020)
136 LETTER MOTION for Extension of Time to respond to Second Amended Complaint addressed to Judge Cathy Seibel from Jeb Harben and Jane Goldberg dated Sept. 4, 2020. Document filed by Anthony J. Annucci, Andrew Cuomo, Anne Marie McGrath, New York State Department of Corrections and Community Supervision, New York State Office of Mental Health, Ann Marie T. Sullivan..(Goldberg, Jane) (Entered: 09/04/2020)
137 CONSENT MOTION for Confidentiality (Permitting New Plaintiffs to Proceed Under Pseudonyms). Document filed by P. C., S. D., M. G., D. H., C. J., M. J., W. P., D. R., J. R.. (Attachments: # 1 Text of Proposed Order).(Quackenbush, Robert) (Entered: 09/04/2020)

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138 ORDER granting 136 Letter Motion for Extension of Time; Defendants may have until 10/2/20 to respond to the Second Amended Complaint ("SAC"). The Court will rule on the motion to dismiss to the First Amended Complaint ("FAC"), to the extent appropriate, on 9/25/20 at 2 pm. So new briefing on the on the claims in the First Amended Complaint is not necessary at this time. We will discuss after the ruling the extent to which, if at all, discovery on the claims in the SAC is appropriate. In the meantime, discovery on the claims in the FAC may proceed. (HEREBY ORDERED by Judge Cathy Seibel)(Text Only Order) (Seibel, Cathy) (Entered: 09/08/2020)
139 ORDER ON PLAINTIFFS' MOTION TO PROCEED ANONYMOUSLY granting 137 Motion for Confidentiality. IT IS HEREBY ORDERED that Plaintiffs' motion to proceed anonymously by means of the pseudonyms reflected in the caption of this Order is GRANTED; and it is further ORDERED that all public filings will proceed anonymously by means of the pseudonyms reflected in this Order, and that all other filings will be under seal to the extent they reveal the identities of the Plaintiffs; and it is further ORDERED that Defendants and their legal counsel and staff, and Plaintiffs' legal counsel and staff are prohibited from publicly disclosing the names of the Plaintiffs unless and until further ordered by this Court; and it is further ORDERED that within one business day of the date of this Order, Plaintiffs' shall disclose to Defendants' legal counsel the identity of each of the named Plaintiffs. The Clerk shall terminate Doc. 137. SO ORDERED. (Signed by Judge Cathy Seibel on 9/8/2020) (mml) (Entered: 09/08/2020)
140 NOTICE OF COURT CONFERENCE: A Bench Ruling on the pending motion(s) is scheduled for September 25, 2020 at 2:00 p.m. (via telephone) before the Honorable Cathy Seibel at the Charles L. Brieant United States District Courthouse, 300 Quarropas Street, White Plains, New York 10601 in Courtroom 621. Person(s) appearing via telephone are reminded of the general prohibition against any forms of recording and rebroadcasting of Court proceedings. Violation of these prohibitions may result in sanctions, including removal of court-issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Pursuant to Judge Seibel's Emergency Individual Rules and Practices in light of COVID-19, last revised on March 19, 2020, the parties are directed to attend by phone using the following information: Toll-Free Teleconference number: (877) 336-1839 to call in and enter access code: 1047966#. Telephone Conference set for 9/25/2020 at 02:00 PM in Courtroom 621, 300 Quarropas Street, White Plains, NY 10601 before Judge Cathy Seibel. (mml) (Entered: 09/09/2020)

09/25/2020

Minute Entry for proceedings held before Judge Cathy Seibel: Bench Ruling held on 9/25/2020 re: 79 MOTION to Dismiss the First Amended Class Action Complaint filed by Anthony J. Annucci, Andrew Cuomo, New York State Department of Corrections and Community Supervision, Anne Marie McGrath, Ann Marie T. Sullivan, New York State Office of Mental Health. Plaintiffs' counsel(s) Elena Landriscina, Esq., Joshua Rosenthal, Esq., Walter Ricciardi, Esq., Emily Vance, Esq., and Stefen Short, Esq. appear telephonically. Defendants' counsel(s) Jane Goldberg, Esq., Jeb Harben, Esq., and Adam Sansolo, Esq. appear telephonically. Law Clerk Ryan Partelow appears telephonically. For the reasons stated on the record, Defendant's Motion to Dismiss on mootness grounds is DENIED without prejudice to renewal to the extent Plaintiff(s) claim the conditions into which they were released are not sufficiently integrated. Defendant's Motion to Dismiss is GRANTED as to the Substantive Due Process claim, and otherwise DENIED. Defendant Andrew Cuomo (as Governor for the State of New York) is DISMISSED as a Defendant. The Clerk is directed to terminate Cuomo as a Defendant and terminate Motion (Doc # 79). Defendants' Pre-Motion Letter or Answer as to Plaintiffs' Second Amended Complaint to be submitted by October 16, 2020. See transcript. Motion(s) terminated: 79 MOTION to Dismiss the First Amended Class Action Complaint filed by Anthony J. Annucci, Andrew Cuomo, New York State Department of Corrections and Community Supervision, Anne Marie McGrath, Ann Marie T. Sullivan, New York State Office of Mental Health. (Court Reporter Angie ShawCrockett) (wc) (Entered: 09/25/2020)

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Harrington 7:19-cv-00639-CSLMS 2.90
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 Case 1:19-cv-00639 Document 1 Filed 01/23/19 Page 1 of 48

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------- x

M.G., P.C., C.J., M.J., J.R., and D.R., individually and on behalf of all similarly situated,

Plaintiffs,
-against-
ANDREW CUOMO, in his official capacity as the Governor of the State of New York, the NEW YORK STATE OFFICE OF MENTAL HEALTH, ANN MARIE T. SULLIVAN, in her official capacity as the Commissioner of the New York State Office of Mental Health, the NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, ANTHONY J. ANNUCCI, in his official capacity as the Acting Commissioner of the New York State Department of Corrections and Community Supervision, ANNE MARIE MCGRATH, in her official capacity as Associate Commissioner of the New York State Department of Corrections and Community Supervision,

CLASS ACTION COMPLAINT
1:19-cv-00639

Defendants. ----------------------------------------------------------------------- x
INTRODUCTION 1. Plaintiffs, individuals with serious mental illness who are indigent, bring this action to challenge their institutionalization in state prison. Because Defendants have failed to make available community-based housing and supportive services that Plaintiffs require upon release, Defendants hold Plaintiffs in state prison past their lawful release dates. 2. Plaintiffs bring this action on behalf of a class of people with serious mental illness whom Defendants hold in secure prisons past their release dates—including the end of their prison sentences, approved conditional release dates, and open dates for parole release—

1

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due to the inadequate capacity of community-based mental health housing programs (the “General Class”).
3. Plaintiffs also bring this action on behalf of a subclass of those General Class members who have been incarcerated past the maximum expiration dates of their court-imposed prison sentences (the “RTF Subclass”).
4. While claiming to have released RTF Subclass members to Residential Treatment Facilities (“RTF”), in fact, Defendants continue to hold Plaintiffs in the same prison settings and under the same conditions as their court-imposed prison sentences.
5. In effect, Defendants’ practices administratively lengthen Plaintiffs’ terms of imprisonment, undermining the most basic principle undergirding the criminal justice system: that a criminal sentence, once imposed by a judge, means what it says.
6. While residing in prison pending a vacancy in a community-based mental health housing program, Plaintiffs are not free to come and go or participate in community life.
7. Plaintiffs are locked in secure prison facilities, have no autonomy and no privacy, and continue to be treated as prisoners.
8. Plaintiffs, the General Class, and the RTF Subclass, remain in state prison waiting for community-based mental health housing for months, and in some cases over a year.
9. While confining Plaintiffs, Defendants subject them to prison rules, impose solitary confinement, and may even revoke approved release status in response to reported violations of prison rules, without that person having ever stepped outside prison walls.
10. Defendants need not isolate Plaintiffs in prisons. Defendants can make available within the existing mental health services system the integrated community-based mental health
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housing and supportive services appropriate for Plaintiffs’ needs that Defendants require for their release from prison.
11. Plaintiffs bring this action under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C § 794 (“Section 504”), to remedy Defendants’ failure to provide services to Plaintiffs in the most integrated setting.
12. On behalf of the RTF Subclass, Plaintiffs also bring this action under 42 U.S.C. § 1983 for violations of the Eighth and Fourteenth Amendments to the U.S. Constitution, to remedy the deprivation of RTF Subclass members’ fundamental liberty interests and their rights not to be subject to prolonged incarceration or criminalization of their status as individuals with mental illness who are homeless or at risk of homelessness.
13. Plaintiffs seek declaratory and injunctive relief for the unconstitutional and discriminatory practices to which they are subject.
14. Plaintiffs do not seek an order requiring their release from prison. Rather, Plaintiffs ask that Defendants make release possible by developing the community-based mental health housing programs that Defendants have imposed as a precondition for Plaintiffs’ discharge from prison, and by creating an effective plan for community integration.
15. For those Plaintiffs whose prison sentences have expired, Plaintiffs seek an end to the punitive conditions of their confinement while they await release to their communities.
JURISDICTION AND VENUE 16. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343.
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17. Declaratory and injunctive relief are sought under 28 U.S.C. §§ 1343, 2201, and 2202.
18. Venue is laid within the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to the claims occurred within this district.
THE PARTIES I. The General Class Representatives
A. M.G. 19. Plaintiff M.G. is a 56-year-old man incarcerated at Auburn Correctional Facility,
a maximum-security prison in Auburn, New York. 20. M.G. has a diagnosis of borderline personality disorder. 21. He has also struggled with depression and engaged in self-harm, particularly after
the deaths of his daughter, father, and mother. 22. The New York State Office of Mental Health (“OMH”) has determined M.G. to
be an individual with serious mental illness. 23. He is currently housed in a windowless cell in the Intermediate Care Program at
Auburn, a unit designated exclusively for incarcerated people with serious mental illness. 24. The New York Parole Board granted him an open date for parole release of May
10, 2017. 25. M.G. has been approved for release to Dutchess County. 26. M.G. will be homeless or at risk of homelessness once released from prison. 27. OMH assessed M.G. as requiring and being appropriate for community-based
mental health housing.
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28. Anticipating his own needs, M.G. had requested that he receive counseling and mental health housing upon his release from prison when meeting with his OMH discharge planner and the Parole Board.
29. M.G.’s OMH discharge planner has submitted applications for mental health housing in Dutchess County.
30. Upon reaching his open date for parole release, prison staff informed M.G. that he would not be timely released due to a determination that he can be released only to communitybased mental health housing.
31. M.G. is currently on a waiting list for a bed after being informed that there are no available beds in the community-based mental health housing that he requires.
32. M.G. remains at a correctional facility solely because he requires communitybased mental health housing and supports that Defendants have not made available.
33. M.G.’s mental health has deteriorated as a result of his continued incarceration at Auburn.
34. The stress of his continued stay and uncertainty as to duration has also disrupted his sleep and has caused him to have seizures.
35. His prolonged institutionalization also strained his marriage. When he was not released on his approved date, M.G.’s wife assumed incorrectly that it was due to some infraction or wrongdoing. M.G. and his wife have since divorced.
36. M.G. desires to reside and receive programs and services in community-based mental health housing.
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B. P.C. 37. Plaintiff P.C. is a 48-year-old man incarcerated at Sullivan Correctional Facility, a
maximum-security prison in Fallsburg, New York. 38. P.C. has a diagnosis of schizophrenia. 39. He has also been diagnosed with mild intellectual disability. 40. OMH has determined P.C. to be an individual with serious mental illness. 41. He is currently housed in the Special Needs Unit at Sullivan. 42. The Special Needs Unit at Sullivan where P.C. is housed is designated exclusively
for incarcerated individuals with developmental or intellectual disabilities and adaptive behavior deficits, and houses people who are additionally diagnosed with serious mental illness.
43. The New York Parole Board granted him an open date for parole release of December 19, 2017.
44. P.C. has been approved for release to Nassau County. 45. P.C. will be homeless or at risk of homelessness once released from prison. 46. OMH assessed P.C. as requiring and appropriate for community-based mental health housing upon his discharge. 47. OMH staff submitted mental health housing applications on P.C.’s behalf to Nassau County. 48. Subsequently, OMH staff informed P.C. that they would seek housing for him in Suffolk County instead, since no beds are available in Nassau. 49. Prison staff have informed P.C. that he will not be released because appropriate community-based mental health housing is unavailable.
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50. P.C. remains at a correctional facility solely because he requires communitybased mental health housing and supports that Defendants have not made available.
51. P.C. desires to reside and receive programs and services in community-based mental health housing. II. Representatives of Both the General Class and the Subclass
A. C.J. 52. Plaintiff C.J. is a 31-year-old man who is held at Green Haven Correctional
Facility, a maximum-security prison in Stormville, New York. 53. C.J. has a diagnosis of bipolar II disorder. 54. OMH has determined C.J. to be an individual with serious mental illness. 55. C.J.’s sentence of imprisonment has ended, and he is being held past his
maximum expiration date. 56. The Department of Corrections and Community Supervision (“DOCCS”) claims
to have released C.J. to a “residential treatment facility,” first at Fishkill Correctional Facility and now at Green Haven Correctional Facility.
57. In fact, C.J. is currently housed in a single cell in the Intermediate Care Program at Green Haven, a unit designated exclusively for incarcerated people with serious mental illness.
58. C.J.’s maximum expiration date—signaling the end of his court-imposed prison sentence—was September 28, 2017, as calculated by DOCCS.
59. C.J. has been sentenced to five years of post-release supervision in the community.
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60. Prior to C.J.’s release date, DOCCS placed him in Sing Sing Correctional Facility’s Community Orientation and Re-entry Program (“CORP”), a program for people with serious mental illness who are nearing release from prison.
61. CORP is designed to prepare people with serious mental illness for community integration and a component of the program is focused on securing housing.
62. On July 21, 2017, C.J.’s OMH discharge planner completed a discharge summary for C.J., which noted that C.J. would be homeless and would require community-based mental health housing and supports upon release from prison.
63. On August 1, 2017, C.J.’s OMH discharge planner submitted an application for community-based mental health housing and services in Orange County on C.J.’s behalf.
64. While enrolled in CORP, C.J.’s OMH counselor informed C.J. that he would not be released at the end of his prison sentence and would be held past his maximum expiration date.
65. In September 2017, C.J. was directed to sign papers related to “residential treatment facility” status.
66. C.J. was transferred to the Fishkill Correctional Facility following the end of his prison sentence and placed in the prison’s Intermediate Care Program and Transitional Intermediate Care Program.
67. Subsequently, DOCCS transferred C.J. to the Green Haven Correctional Facility and placed him in the prison’s Transitional Intermediate Care Program and Intermediate Care Program.
68. Despite his nominal “release” status, C.J. has been housed in prison and subject to prison conditions for the entirety of time following his maximum expiration date.
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69. C.J. remains at a correctional facility solely because he requires community-based mental health housing and supports that Defendants have not made available.
70. OMH staff have told C.J. that there are few resources in the community for him and he needs to be patient.
71. C.J. earned a GED and vocational certificate in prison and planned to search for a job upon release. Due to his delayed release, he has been unable to act on those plans.
72. C.J. has experienced serious psychiatric harm due to his continued incarceration. C.J. has repeatedly engaged in self-harm and expressed his desire to die rather than remain in prison.
73. C.J. was admitted to a crisis observation cell and has been repeatedly placed on suicide watch, including when his birthday approached and he informed prison staff that he had lost hope of going home.
74. C.J. wants to return to Orange County, where his family and support system reside.
75. As a result of his continued incarceration, his family relationship has suffered. C.J. was due to be released shortly before his young daughter’s birthday, and he expected to celebrate with her for the first time in a decade. Since his release date was in early fall, he also planned to spend the holidays with family.
76. C.J. desires to reside and receive programs and services in community-based mental health housing.
B. M.J. 77. Plaintiff M.J. is a 32-year-old man who is held at Green Haven Correctional
Facility, a maximum-security prison in Stormville, New York.
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78. M.J. has a diagnosis of bipolar disorder. 79. OMH has determined M.J. to be an individual with serious mental illness. 80. M.J.’s sentence of imprisonment has ended, and he is being held past his maximum expiration date. 81. DOCCS claims to have released him to a “residential treatment facility,” first at Fishkill Correctional Facility and now at Green Haven Correctional Facility. 82. In fact, M.J. is currently housed in a single cell in the Intermediate Care Program at Green Haven, a unit designated exclusively for incarcerated people with serious mental illness. 83. M.J.’s maximum expiration date—signaling the end of his court-imposed prison sentence—was June 18, 2018, as calculated by DOCCS. 84. M.J. has been sentenced to five years of post-release supervision in the community. 85. Prior to June 18, 2018, M.J. was housed in Great Meadow Correctional Facility’s Intermediate Care Program. 86. At Great Meadow, M.J. met with an OMH discharge planner assigned to the Intermediate Care Program and completed government benefits applications. 87. M.J.’s OMH discharge planner confirmed that M.J. will be homeless or at risk of homelessness once released from prison, and requires and is appropriate for community-based mental health housing. 88. M.J.’s OMH discharge planner submitted an application for community-based mental health housing and services in Orange County on M.J.’s behalf.
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89. Instead of releasing M.J., DOCCS informed M.J. that he would be admitted to a “residential treatment facility” and DOCCS directed M.J. to sign papers related to residential treatment facility status.
90. M.J. was transferred to the Fishkill Correctional Facility’s Intermediate Care Program on or about the maximum expiration date of his prison sentence.
91. Subsequently, DOCCS transferred M.J. to the Green Haven Correctional Facility’s Intermediate Care Program.
92. Despite his nominal “release” status, M.J. has been housed in prison and subject to prison conditions for the entirety of time following his maximum expiration date.
93. M.J. was informed that limited community-based mental health housing in Newburgh will contribute to the delay of his release to Orange County.
94. M.J. remains at a correctional facility solely because he requires communitybased mental health housing and supports that Defendants have not made available.
95. Even though segregated confinement is known to be harmful to people with serious mental illness, Defendants have placed M.J. in punitive segregated confinement twice while on “residential treatment facility” status, placing M.J. at risk of harm from psychiatric decompensation.
96. M.J. wants to return to Orange County, where he grew up and where his family support system resides.
97. M.J. desires to reside and receive programs and services in community-based mental health housing.
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C. J.R. 98. Plaintiff J.R. is a 35-year-old man incarcerated at Fishkill Correctional Facility, a
medium-security prison in Beacon, New York. 99. J.R. has diagnoses of depressive disorder and post-traumatic stress disorder. 100. OMH has determined J.R. to be an individual with serious mental illness. 101. J.R. has attempted self-harm on multiple occasions. 102. J.R.’s sentence of imprisonment has ended, and he is being held past his
maximum expiration date. 103. DOCCS claims to have released him to the nominal “residential treatment
facility” at Fishkill. 104. In fact, J.R. is housed with individuals serving a sentence of imprisonment at the
prison. 105. J.R. received an approved conditional release date of November 9, 2017. 106. On his conditional release date, J.R.’s prison counselor informed him that he
would not be released on that day. 107. J.R.’s maximum expiration date—signaling the end of his court-imposed prison
sentence—was June 7, 2018, as calculated by DOCCS. He has been sentenced to three years of post-release supervision in the community.
108. Months before the expiration of J.R.’s prison sentence, J.R.’s OMH discharge planner submitted an application on J.R.’s behalf for community-based mental health housing and services in Dutchess County, where J.R. lived before his incarceration.
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109. DOCCS issued a memorandum on or about June 4, 2018 advising J.R. that, pursuant to a condition established by the Parole Board, he would be transferred to a “residential treatment facility” upon the expiration of his sentence for a period not to exceed six months.
110. On June 7, 2018, the maximum expiration date of J.R.’s prison sentence, he was not released from prison.
111. J.R.’s counselor informed him that he would not be released because he has serious mental illness and requires community-based mental health housing, which neither DOCCS nor OMH had secured for him.
112. J.R.’s counselor also directed J.R. to sign documents that were presented to him as “release papers.”
113. His counselor informed J.R. that DOCCS no longer considered him an “inmate,” but rather a “parolee.”
114. DOCCS continued to hold J.R. in the same housing unit, under the same conditions, where he had been incarcerated up to that time.
115. Despite his nominal “release” status, J.R. has been housed in prison and subject to prison conditions for the entirety of time following his maximum expiration date.
116. J.R. has proposed the addresses of several family members, including his sister and cousin, as residences to which he could be released. DOCCS has not approved these residences as suitable for his release.
117. J.R. has participated in several interviews with providers of community-based mental health housing.
118. Several providers could not admit J.R. to their program because they lack available beds.
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119. J.R. remains at a correctional facility solely because he requires community-based mental health housing and supports that Defendants have not made available.
120. J.R. desires to reside and receive programs and services in community-based mental health housing.
D. D.R. 121. Plaintiff D.R. is a 36-year-old man incarcerated at Fishkill Correctional Facility, a
medium-security prison in Beacon, New York. 122. D.R. has a diagnosis of bipolar disorder. 123. OMH has determined D.R. to be an individual with serious mental illness. 124. D.R.’s sentence of imprisonment has ended, and he is being held past his
maximum expiration date. 125. DOCCS claims to have released D.R. to the “residential treatment facility” at
Fishkill Correctional Facility. 126. In fact, D.R. is currently housed in a dormitory at the prison, primarily with
people who have been convicted of sex offenses despite the fact that D.R. does not have any convictions for sex offenses.
127. D.R.’s maximum expiration date—signaling the end of his court-imposed prison sentence—was December 29, 2017, as calculated by DOCCS. He has been sentenced to postrelease supervision in the community to last until March 4, 2021.
128. In late December 2017, while D.R. was still confined at Mid-State Correctional Facility, DOCCS and OMH staff presented D.R. with “release papers” and directed D.R. to sign them.
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129. On or about December 29, 2017, D.R.’s counselor informed him that he would be transferred to Fishkill.
130. OMH staff also informed D.R. that he would not be released to the community upon the expiration of his prison sentence.
131. D.R. received a memorandum dated May 29, 2018 from Defendant McGrath, noting that he would continue to be placed in a “residential treatment facility” because “an approved residence [for his release] has not yet been identified.” This memorandum explained that he would remain at the residential treatment facility “until such time as you have proposed and DOCCS has approved a suitable residence.”
132. D.R. has continued to be incarcerated in prison and subject to prison conditions at Fishkill since receiving this memorandum.
133. Both before and after the maximum expiration date of his prison sentence, D.R. met with discharge planners to discuss his history of homelessness and need for communitybased mental health housing and supportive services, such as case management.
134. D.R.’s discharge planner submitted an application for community-based mental health housing and services on D.R.’s behalf to Nassau County.
135. D.R. has participated in multiple interviews with providers of community-based mental health housing.
136. Despite his nominal “release” status, D.R. has been housed in prison and subject to prison conditions for the entirety of time following his maximum expiration date.
137. D.R. has been placed in segregated confinement at the prison as punishment for disciplinary infractions, even after the expiration of his prison sentence.
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138. D.R. has proposed that he be released to his aunt’s home. This address was not approved as suitable for his release.
139. D.R. remains at a correctional facility solely because he requires communitybased mental health housing and supports that Defendants have not made available.
140. D.R.’s mental health has significantly deteriorated as a result of his continued incarceration. He has also experienced periods of frustration and sadness regarding his continued incarceration.
141. D.R.’s OMH counselor has indicated that he is exhibiting symptoms of “paranoia.”
142. D.R. expected that after he was released at the end of his prison sentence, he would study to take a GED exam and find employment.
143. D.R. also expected that after he was released at the end of his prison sentence, he would spend time with his family, particularly during holidays.
144. D.R. desires to reside and receive programs and services in community-based mental health housing. III. Defendants
A. Governor Andrew Cuomo 145. Defendant Andrew Cuomo is the Governor of the State of New York, a public
entity covered by the ADA and Section 504. N.Y. Const. Art. 4, § 1. 146. Defendant Cuomo is responsible for supervising and controlling DOCCS and
OMH, seeking and expending funds to implement the programs and deliver the services of those agencies, and taking care that the laws of the State of New York are faithfully executed. N.Y. Const. Art. 4, § 3; Art. 5, § 4; Art. 7, § 2.
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147. Defendant Cuomo appoints the commissioners of OMH and DOCCS, who serve at his pleasure.
148. Defendant Cuomo is sued in his official capacity. B. New York State Office of Mental Health
149. Defendant OMH is charged by statute with the “responsibility for seeing that mentally ill persons are provided with care and treatment, that such care, treatment and rehabilitation is of high quality and effectiveness, and that the personal and civil rights of persons receiving care, treatment and rehabilitation are adequately protected.” N.Y. Mental Hyg. Law § 7.07(c).
150. Defendant OMH is required to develop a comprehensive, integrated system that ensures people with mental illness receive services in their communities whenever possible and that sparingly utilizes institutions to provide care.
151. Defendant OMH enforces the laws and regulations applicable to mental health units within the DOCCS system and is responsible for developing, implementing and overseeing New York State’s community-based mental health housing programs and supportive services.
152. Defendant OMH is a public entity covered by the ADA and Section 504. C. Commissioner Ann Marie T. Sullivan
153. Defendant Ann Marie T. Sullivan is the Commissioner of OMH, a public entity covered by the ADA and Section 504.
154. Defendant Sullivan is responsible for the administration and operation of OMH, including the provision of services to individuals with mental illness who are incarcerated and discharged from prison. She is responsible for establishing standards for operating and funding a
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continuum of community-based mental health housing. N.Y. Mental Hyg. Law § 41.44; N.Y. Correct. Law §§ 401, 404.
155. Defendant Sullivan is also responsible for determining what services to provide, in what setting to provide them, and how to allocate funds for each program and where to allocate such funds. N.Y. Mental Hyg. Law § 7.15.
156. Defendant Sullivan oversees OMH’s coordination and planning with local governments to ensure that care, treatment, and rehabilitation may be received in people’s home communities. N.Y. Mental Hyg. Law §§ 7.01, 7.07(a).
157. Defendant Sullivan is sued in her official capacity. D. New York State Department of Corrections and Community Supervision
158. Defendant DOCCS enforces the laws and regulations applicable to New York State prisons.
159. Defendant DOCCS is statutorily responsible for the confinement and habilitation of individuals placed in state correctional facilities and for their programming, supervision, and the conditions of their confinement.
160. Defendant DOCCS is also responsible for the management of individuals released to community supervision.
161. Defendant DOCCS is a public entity covered by the ADA and Section 504. E. Commissioner Anthony J. Annucci
162. Defendant Anthony J. Annucci is the Acting Commissioner of DOCCS, a public entity covered by the ADA and Section 504.
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163. Defendant Annucci is responsible for the administration and operation of DOCCS, including the care, custody, parole, and post-release supervision of individuals with mental illness who are incarcerated and discharged from prison. N.Y. Correct. Law § 201.
164. Defendant Annucci is charged with the “management and control of persons released on community supervision” and inquiring “into all matters connected with said community supervision.” N.Y. Correct. Law § 112(2).
165. Defendant Annucci is sued in his official capacity. F. Associate Commissioner Anne Marie McGrath
166. Defendant Anne Marie McGrath is an Associate Commissioner of DOCCS, a public entity covered by the ADA and Section 504.
167. Defendant McGrath is responsible for managing the inmate population, including all movement and transportation of incarcerated people and the transfer and placement of incarcerated people in residential treatment facilities.
168. Defendant McGrath is sued in her official capacity. FACTUAL ALLEGATIONS
I. Defendants are Responsible for Ensuring that Plaintiffs are Discharged to Community-Based Mental Health Housing Programs on the Date of their Release from State Prison. 169. Defendants are responsible for planning for the release from New York State
prisons of people with serious mental illness who are homeless or at risk of homelessness. 170. Defendants are responsible for making available adequate community-based
mental health housing programs for this population.
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A. The Integration Mandate of the ADA and Section 504 171. Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, and Section
504 of the Rehabilitation Act, 29 U.S.C. § 794, prohibit discrimination against individuals with disabilities, including those with mental illness.
172. 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.
173. Similarly, Section 504 states that “no otherwise qualified individual with a disability in the United States . . . 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).
174. Implementing regulations for the ADA and Section 504 require 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); 28 C.F.R. § 41.51(d); see also 45 C.F.R. § 84.4(b)(2). An integrated setting is one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. part 35, App. B. These statutes and regulations are often referred to collectively as the “integration mandate.”
175. In Olmstead v. L.C., 527 U.S. 581 (1999), the U.S. Supreme Court held that a state’s failure to place a person with mental illness in the most integrated setting appropriate for his or her needs constitutes discrimination on the basis of disability, in violation of the integration mandate of the ADA.
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B. New York State’s Community-Based Mental Health Housing Programs 176. OMH is responsible for developing community-based mental health housing
programs for people who are released from state prisons and for ensuring that people with serious mental illness who are homeless or at risk of homelessness upon release receive assistance with obtaining housing that addresses their individualized needs.
177. Community-based mental health housing for this population encompasses a continuum of housing models that provide different levels of supervised treatment and care coordination tailored to residents’ needs.
178. People who need greater supervision or assistance developing independent living skills generally reside in a more service-intense housing model, such as an apartment treatment program. These programs are intended to be transitional, allowing people to progress to a model that affords greater independence.
179. People with greater independent living skills generally reside in a single room occupancy residence or scattered-site supported housing. Both models are considered permanent housing.
180. While OMH housing models vary in terms of capacity, services, and location, each offers significantly greater opportunities to participate in the community than prisons, which afford no such opportunities. II. New York Has a Comprehensive Scheme for Release of Individuals with Serious
Mental Illness from Prison. 181. Defendants are responsible for discharging Plaintiffs from state prison to community-based mental health housing that meets their mental health needs in the most integrated setting.
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A. Categories of Release to Community Supervision 182. People serving indeterminate sentences—sentences with minimum and maximum
terms of imprisonment—may be released to parole after completing their minimum term of imprisonment.
183. The New York State Board of Parole—an independent, quasi-judicial body within DOCCS—is authorized to grant or deny parole in its discretion, subject to certain criteria provided in state law and regulations.
184. If parole is granted, the Parole Board sets an “open date for parole release.” 185. A person who receives an open date for parole release is known as a “parole grantee.” 186. If a person is not released on parole, they may next be released on their “conditional release” date if they have earned statutory “good time.” Conditional release is not available to people sentenced to life. 187. Each DOCCS prison’s Time Allowance Committee meets approximately four months before an individual’s presumptive conditional release date to approve the release date based on good behavior and program participation. 188. DOCCS will not discharge from prison any person who had been granted parole or conditional release until DOCCS approves an anticipated community residence for that person. 189. A person not released to parole or conditional release will remain in prison until their “maximum expiration date,” the last day of their sentence. 190. On the maximum expiration date, DOCCS loses legal authority to incarcerate the person pursuant to their sentence.
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191. DOCCS calculates and records each person’s parole eligibility, conditional release, and maximum expiration dates upon admission to DOCCS custody.
192. In 1998, the New York State Legislature passed “Jenna’s Law,” which required courts to impose a period of “post-release supervision” after a determinate sentence (a sentence with a single term of imprisonment).
193. Like parole, post-release supervision is a form of “community supervision” that subjects the individual to DOCCS’s oversight after release from prison.
194. According to the legislative history for Jenna’s Law, post-release supervision was intended to ensure that offenders will be successfully reintegrated into society.
195. Post-release supervision terms “commence upon the person’s release from imprisonment to supervision.” N.Y. Penal Law § 70.45(5).
196. DOCCS identifies individuals released from prison to community supervision— whether on parole, conditional release, or post-release supervision—as “releasees.”
197. The Parole Board is responsible for setting conditions of release for releasees. 198. Certain general conditions apply to all releasees, such as prohibitions on the possession of drug paraphernalia and firearms. 199. The Parole Board may also impose so-called “special conditions.” These conditions may include a requirement to cooperate with mental health evaluation referrals and treatment as directed by the parole officer, a prohibition on communication with certain individuals, a requirement to abide by curfews, and requirements to engage in substance abuse, alcohol abuse, and anti-aggression counseling.
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B. Preparing People with Serious Mental Illness for Release from Prison 200. OMH and DOCCS share responsibility for discharging people with serious mental
illness from prison, including by planning for, assessing, and approving housing in the community to which they may be released.
201. Annually, approximately 2,050 people with serious mental illness are discharged from New York State prisons to the community.
202. OMH identifies people with serious mental illness by assigning them an “Sdesignation” or an OMH “Level 1” or “Level 2” classification.
203. OMH is required to provide a comprehensive discharge plan to every person with serious mental illness who is preparing to return to the community from prison.
204. As part of the discharge planning process, OMH counselors are required to meet with people with serious mental illness at least six months prior to their scheduled release date to assess their needs upon release, including housing needs.
205. OMH prepares and submits a Single Point of Access application to secure for the individual the community-based mental health housing and any other necessary services in the county to which they will return.
206. If a person with serious mental illness will be homeless upon release, is at risk of homelessness, or otherwise requires mental health housing, OMH staff must apply for housing using the Single Point of Access application.
207. OMH’s preparation of a Single Point of Access application for housing reflects its assessment that the person is eligible and appropriate for community-based mental health housing.
208. DOCCS staff collaborate with OMH in planning for a person’s housing needs and developing a release plan that includes suitable housing in the community.
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209. As part of that collaboration, DOCCS counselors ask each person with serious mental illness to propose a residence to which he or she can be released.
210. DOCCS parole staff are responsible for investigating the proposed residence. 211. DOCCS has the final authority to approve or reject the proposed residence. 212. Pursuant to OMH policy, an individual is deemed homeless or at risk of homelessness if he or she has submitted a proposed address that DOCCS has rejected. 213. As many incarcerated people lack housing and financial resources, many propose a local homeless shelter as their residence. 214. Defendants often reject shelters, however, as not suitable for people with serious mental illness. 215. Because their proposed residence is often rejected, indigent people with serious mental illness are often left with only one suitable housing option upon release from prison—the community-based mental health housing OMH deemed them eligible and appropriate for. 216. Plaintiffs are individuals forced by Defendants to remain incarcerated in prison beyond their open dates for parole release, approved conditional release dates, and maximum expiration dates when no community-based mental health housing is available at the time they legally should be free. C. The “Release” of People with Serious Mental Illness to State Prison on RTF Status 217. New York law authorizes DOCCS to transfer individuals who are released to post-release supervision status, having reached their maximum expiration dates, to an RTF. 218. New York law defines RTFs as community-based placements that promote a person’s reintegration into society: “Residential treatment facility” [is a] correctional facility consisting of a community based residence in or near a community where employment, educational and training opportunities are readily available for persons who are on parole or conditional release
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and for persons who are or who will soon be eligible for release on parole who intend to reside in or near that community when released. N.Y. Correct. Law § 2(6). 219. The New York Correction Law further requires DOCCS to secure education, employment, rehabilitation, and reintegration services for individuals placed in RTFs. 220. A releasee placed in an RTF “may be allowed to go outside the facility during reasonable and necessary hours to engage in any activity reasonably related to his or her rehabilitation and in accordance with the program established for him or her.” N.Y. Correct. Law § 73. 221. Two New York statutes authorize DOCCS to place an individual who is released to post-release supervision in an RTF. 222. Penal Law § 70.45(3) provides that the Parole Board may require a time-limited RTF placement as a special condition of community supervision: [T]he board of parole may impose as a condition of post-release supervision that for a period not exceeding six months immediately following release from the underlying term of imprisonment the person be transferred to and participate in the programs of a residential treatment facility as that term is defined in subdivision six of section two of the correction law [as quoted in paragraph 205 above]. 223. If the Parole Board imposes RTF placement as a condition of post-release supervision, DOCCS, not the Board, is responsible for selecting the specific RTF to which the individual will be transferred and for supervising the individual while placed there. 224. Correction Law § 73(10) separately provides that: The commissioner [of DOCCS] is authorized to use any residential treatment facility as a residence for persons who are on community supervision. Persons who reside in such a facility shall be subject to conditions of community supervision imposed by the board.
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225. Therefore, even if the Parole Board does not impose RTF placement as a condition of release, the Correction Law authorizes DOCCS to transfer an individual on postrelease supervision to an RTF placement.
226. Pursuant to Correction Law § 70, DOCCS commissioners have designated 13 correctional facilities, spread across the state, to function as RTFs: Green Haven, Wende, Fishkill, Woodbourne, Orleans, Mohawk, Mid-State, Hudson, Albion, Rochester, Queensboro, and Lincoln Correctional Facilities, as well as Edgecombe Residential Treatment Facility. These 13 facilities also function as general correctional facilities for incarcerated individuals serving their sentences.
227. The majority of facilities designated as RTFs are medium or maximum security level prisons.
228. There are no separate “residential treatment facilities” in the prison compounds where Plaintiffs are incarcerated.
229. Plaintiffs are subjected to the same conditions and restrictions of prison confinement as they have been since they began their sentences. Even though Plaintiffs are labelled “releasees,” in reality they remain prisoners in every respect. III. Defendants Fail to Place Plaintiffs in the Most Integrated Setting Appropriate to
their Needs. 230. Defendants confine Plaintiffs in prison past their open dates for parole release, approved conditional release dates, and maximum expiration dates because there is inadequate capacity in the community-based mental health housing described in Section I(B) above. A. Defendants Fail in their Mandate to Serve the Housing Needs of People with Serious Mental Illness Released from State Prison.
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231. Defendants Cuomo, Sullivan, and OMH are responsible for providing necessary community-based mental health housing programs for Plaintiffs as they are people with serious mental illness.
232. The stated goal of OMH’s housing programs is to provide integrated housing, enabling residents to live independently, to succeed in the community, and to interact with nondisabled persons to the fullest extent possible.
233. OMH has repeatedly recognized the importance of providing community-based mental health housing to members of this population who would otherwise be homeless upon their release.
234. OMH has systematically failed to address the foreseeable need for adequate capacity in community-based mental health housing programs to meet the demands of this population.
235. OMH knows of and has failed to respond to counties’ local needs for an adequate number of community-based mental health housing beds generally and specifically for people with serious mental illness released from prison.
236. County personnel who process Single Point of Access applications for incarcerated people report back to OMH staff about the availability of community-based mental health housing beds.
237. In addition, across the state, counties have described their lack of capacity to meet the need for mental health housing in reports to OMH.
238. Although OMH has recently created an initiative to work with counties to develop scattered-site supported housing specifically for people released from prison, the initiative is
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insufficient in light of the annual number of people being released from prison who need community-based housing.
239. Plaintiffs routinely remain on waiting lists for community-based mental health housing for months, and they remain institutionalized in prison, in some cases over a year.
240. As a result of inadequate capacity in mental health housing programs throughout the state, Plaintiffs remain in prison beyond their open dates for parole release, approved conditional release dates, and maximum expiration dates.
B. Defendants Institutionalize Plaintiffs in Segregated and Punitive Prison Conditions Inappropriate for Individuals with Serious Mental Illness Approved for Release to the Community. 241. Prison is a segregated setting. 242. In prison, Plaintiffs have no meaningful ability to engage in mainstream society. 243. Plaintiffs are held in rural, geographically isolated regions, with no nearby public
transportation and far from the communities to which they will return. 244. Defendants do not allow Plaintiffs to leave the prison at any time, even when they
demonstrate good behavior and there has been no finding that they pose a threat to the safety or welfare of the community.
245. Plaintiffs are unable to attend job interviews, visit their home towns or cities, or pursue education in the community.
246. While in prison, Plaintiffs are often housed in separate specialized units for people with serious mental illness and other disabilities.
247. While these units provide services to help incarcerated people with disabilities manage a secure environment, Plaintiffs have few opportunities to interact with non-disabled people.
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248. Even when not housed in specialized units in prison, Plaintiffs have fewer opportunities to interact with non-disabled people than they would in the community due to the high prevalence of disabilities in state prison.
249. Plaintiffs are housed in cells or dorms. 250. Cells are locked with a metal-barred door and may not have a window to the outof-doors. 251. In dorms, people are assigned to a “cube” consisting of their bed and a small area for their possessions. 252. Prison rules restrict the quantity and type of personal property Plaintiffs may possess. 253. Plaintiffs are afforded no autonomy or choice in their daily life activities. 254. Plaintiffs are required to wear prison uniforms. 255. Plaintiffs are not permitted to pursue hobbies, programs, or activities according to their interests and personal goals. 256. If they need to purchase anything, Plaintiffs may do so only from the prison commissary or private vendors, or rely on family or friends to send a care package that complies with prison rules. 257. Plaintiffs’ day and night are determined by Defendants according to the prison schedule. They eat, sleep, shower, and exercise only as dictated by DOCCS’s schedule and rules. 258. Plaintiffs have no freedom of movement in the facility. 259. Plaintiffs must abide by rigid rules on escort and movement procedures, such as standing at painted markings on the floors of the prison that direct prisoners where to pause or walk.
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260. Plaintiffs are subject to prison rules and procedures related to shackles and restraints.
261. In fact, Plaintiffs who have experienced mental health crises have been required to wear shackles when escorted outside their observation cells.
262. Security considerations, prison protocol and rules, and the availability of prison resources restrict Plaintiffs’ mental health treatment.
263. Plaintiffs who exhibit suicidal or self-injurious behavior, for example, may be placed in stark observation cells, tantamount to solitary confinement, where they are stripped naked, required to wear tear-proof smocks, and held for prolonged periods of time.
264. Plaintiffs are subject to prison discipline for as long as they remain in prison. 265. Despite the well-known risk of serious harm to psychiatric condition, prison staff frequently subject Plaintiffs to disciplinary segregated confinement, including for minor infractions. 266. In addition, Plaintiffs may receive disciplinary sanctions depriving them of telephone calls, visits, and packages from friends and family. 267. DOCCS may even rely on rule violations to revoke Plaintiffs’ open dates for parole release, parole status, conditional release, or post-release supervision, all without the individual having ever left prison. 268. Some Plaintiffs are so fearful of receiving disciplinary “tickets” from prison staff that they refuse to leave their cell or avoid interactions with other individuals. 269. Plaintiffs are subject to the prisons’ rigid rules on visits from family and loved ones.
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270. Family members must plan visits only on certain days, travel to the prison (for some, many hours away from their home), go through invasive security checks, and have timelimited visits in crowded and noisy visiting areas while being monitored by corrections officers.
271. Family connections become strained, and even lost, as Plaintiffs remain in prison past their release dates.
272. Plaintiffs are also subject to the stigma of continued incarceration. An individual’s support network may not understand why their loved one remains in prison and assume it is because of some wrongdoing or unknown infraction.
273. Prisons provide no meaningful opportunity for people with mental illness to learn to re-enter the community.
274. In this segregated security environment, Plaintiffs have no opportunities to obtain basic life skills—such as how to use a cell phone, how to add money to a public transportation fare card, how to manage a limited budget to care for personal needs, or how to use the internet to find doctors, housing, and services.
275. Plaintiffs could develop skills integral to functioning independently and reintegrating into modern society in community-based mental health housing.
C. Plaintiffs Are People with Disabilities Who Are Qualified to Receive Services in a More Integrated Setting. 276. Plaintiffs and class members are people with mental illnesses, such as bipolar
disorder, schizophrenia, depressive disorder, post-traumatic stress disorder, and others, which substantially limit one or more major life activities, including but not limited to caring for oneself, speaking, learning, concentrating, thinking, communicating, and sleeping.
277. Plaintiffs are qualified for community-based mental health housing upon their release from prison based on their current mental illness diagnosis and substantial limitations.
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278. Additionally, Plaintiffs belong to at least two priority populations identified by OMH for community-based mental health housing: the forensic population (namely individuals released from jails and prisons) and individuals who are homeless.
279. In accordance with OMH policy, Defendants identified Plaintiffs’ need for community-based mental health housing through discharge planning, periodic meetings, and assessments, and then prepared referrals to community-based services, including housing, case managers, and mental health treatment providers.
280. OMH also submitted Single Point of Access applications to the counties to which Plaintiffs will be released.
281. Nonetheless, Plaintiffs did not receive the community-based services for which they are qualified because they were instead kept in prison.
282. Plaintiffs’ confinement in prison is not based on Defendants’ determination that such placement is clinically necessary.
283. Plaintiffs are confined solely because the Defendants have failed to provide sufficient housing and supportive services in more integrated settings.
D. Plaintiffs Want to Receive Services in a More Integrated Setting. 284. Plaintiffs want to be free from prison. They want to live in a more integrated
setting, such as community-based mental health housing. 285. Plaintiffs demonstrated this desire by engaging in the housing application process,
by participating in video-teleconference interviews with local housing providers, and by repeatedly expressing to DOCCS and OMH staff their wishes to be discharged to community housing.
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286. The desire for integrated housing has also led Plaintiffs to request other alternatives to institutionalization in prison.
287. Some Plaintiffs have proposed that they be released to family members. 288. With proper supportive services in these environments, such as Assertive Community Treatment (a multidisciplinary team approach, responsive to individual needs), people with incarceration histories can be successful in the community. 289. Defendants have not released Plaintiffs to these environments. E. Plaintiffs Can Be Reasonably Accommodated in Integrated Settings. 290. Defendants can reasonably accommodate Plaintiffs’ need to receive services in an integrated community setting. 291. New York already has a continuum of residential services to integrate people with serious mental illness who are being released from prison into the mainstream community. 292. Defendants have recognized the value of community-based mental health housing as a critical initiative for this population. 293. However, existing programs and services have been developed and administered in a manner and on a scale that are inadequate for Plaintiffs’ needs, resulting in unlawful, unconstitutional, and unnecessary institutionalization in state prisons. 294. Defendants could develop capacity in existing community-based mental health housing programs and support services without unreasonable costs. 295. Defendants could redirect available funds to provide services to people in integrated community settings and/or expand capacity in existing community-based housing programs and mental health support services.
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296. Redirection of funds used to incarcerate people to provide services in integrated community settings would achieve cost savings for the state. IV. Defendants Hold Members of the RTF Subclass in Punitive Prison Conditions Past
Their Maximum Expiration Dates. 297. Defendants have a policy and practice of placing individuals with serious mental illness in state prisons, and subjecting them to conditions that amount to punishment, after they have reached their maximum expiration dates. 298. Each member of the RTF Subclass is being held in state prison. 299. These RTF Subclass members are not held in pretrial detention, are not subject to post-release supervision revocation proceedings, and are not being held pursuant to applicable civil commitment laws. 300. Instead, Defendants use state prisons to house RTF Subclass members who have nominally been “released” to community supervision because there is inadequate housing that can meet their mental health needs in the community. 301. Defendants know that Plaintiffs’ sentences of imprisonment end on their maximum expiration dates, that those dates have passed, that Plaintiffs are homeless or at risk of homelessness, and that Plaintiffs require community-based mental health housing. 302. Further, Defendants know that Plaintiffs will remain in prison barring actions by Defendants. 303. When DOCCS determines that there are no appropriate mental health housing beds available at the expiration of RTF Subclass members’ sentences, DOCCS begins the administrative process of transferring these individuals to RTFs based in state prisons. 304. DOCCS staff have petitioned the Parole Board to impose RTF placement as a condition of their post-release supervision.
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305. Defendants Annucci or McGrath approve all transfers of individuals on RTF status to state prison.
306. On their maximum expiration dates, Defendants claim to discharge members of the RTF Subclass to community supervision but in fact continue to incarcerate them in a state prison.
307. In some cases, members of the RTF Subclass are “released” to the very same prison they lived in while serving their prison sentence to live under the same conditions and restrictions.
308. Members of the RTF Subclass are not, however, serving a sentence of imprisonment.
309. DOCCS policies classify RTF Subclass members as “releasees” on community supervision, notwithstanding their incarceration in state prison.
310. Some DOCCS records and staff also refer to RTF Subclass members as “parolees.”
311. Plaintiffs subject to a Parole Board-imposed condition of RTF placement (under Penal Law § 70.45) receive a memorandum known as Special Condition 37, which states that:
Pursuant to the authority conferred upon the New York State Board of Parole under Section 70.45(3) of the New York Penal Law to impose conditions of release upon an individual serving a determinate sentence who is to be released to serve a period of postrelease supervision, as a condition of your post-release supervision, you shall be transferred to, and participate in, the programs of a residential treatment facility, as that term is defined by Correction Law Section 2(6) for a period not exceeding six (6) months from the date of your release to post-release supervision. 312. While the Parole Board may impose RTF placement as a condition of release, the Board is not responsible for selecting the specific RTF—namely, a state prison—in which the releasee will be placed.
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313. Instead, Defendants Annucci and McGrath and DOCCS staff are wholly responsible for designating facilities to serve as RTFs, keeping these individuals in state prison while on RTF status, and subjecting them to punitive conditions.
314. Plaintiffs whose RTF confinement is not authorized under Penal Law § 70.45 and who are not subject to Special Condition 37 are placed on RTF status on the DOCCS Commissioner’s purported authority under Correction Law § 73.
315. Defendant Annucci has designated Defendant McGrath as the official responsible for placing individuals on post-release supervision in an RTF pursuant to Correction Law § 73.
316. DOCCS has claimed the authority to place people on RTF status in state prisons indefinitely.
317. Named Plaintiff D.R., who was assigned to RTF status under the Correction Law, for example, received a memorandum from Defendant McGrath explaining the indefinite nature of this placement:
Since an approved residence has not yet been identified, I am invoking my authority as Associate Commissioner of the New York State Department of Corrections & Community Supervision (DOCCS) under section 73(10) of the Correction Law. Pursuant to such authority, you will remain in a Residential Treatment Facility until such time as you have proposed and DOCCS has approved a suitable residence. 318. While Defendants employ euphemistic terms to describe RTF placements, the reality for RTF Subclass members is that they never left prison. 319. Defendants treat members of the RTF Subclass as inmates and subject them to punitive conditions just as if they were serving a prison sentence. 320. DOCCS does not use community-based “residential treatment facilities” to house Plaintiffs. 321. Further, there are no separate “RTF” units within state prisons that are used to house Plaintiffs and that meet the state law definition in Correction Law § 2.
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322. As of July 2018, all RTF Subclass members assigned to an RTF were held in either medium or maximum security facilities.
323. The majority of the RTF Subclass are incarcerated at Green Haven Correctional Facility (a maximum-security prison) and Fishkill Correctional Facility (a medium-security prison) because these facilities are used to incarcerate individuals with serious mental illness.
324. Plaintiffs suffer severe psychological and emotional harms as a result of their de facto incarceration while on RTF status in state prison.
325. After learning they will be held past their maximum expiration date for an indefinite period, members of the RTF Subclass have attempted suicide and expressed suicidal intentions, engaged in self-harm, experienced depression and hopelessness, and have suffered exacerbated symptoms of their mental illnesses.
326. RTF Subclass members have spent months or even more than one year in state prisons before being released to the community.
327. For example, Plaintiff C.J. has spent nearly 16 months in state prison past his maximum expiration date.
328. Plaintiffs need not be incarcerated. Defendants employ other substantially less restrictive methods that would allow for Plaintiffs’ re-entry into the community and support Plaintiffs in integrated independent settings.
329. These methods include housing combined with supports and services, such as Assertive Community Treatment and mobile crisis services, which already exist but have not been adequately developed or administered by Defendants.
330. Defendants have placed members of the RTF Subclass in a limbo over which they have no control. At the end of their maximum sentence, these individuals are “released” to serve
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a period of community supervision in a state prison solely because they have a disability and require an approved OMH community-based housing placement and supports that do not exist.
CLASS ALLEGATIONS 331. Plaintiffs properly maintain this action as a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure on behalf of themselves and similarly situated individuals in a general class and subclass. 332. The General Class consists of all persons (1) housed or who will be housed in a state prison, (2) with serious mental illness, (3) whose open dates for parole release, approved conditional release dates, or maximum expiration dates have passed, (4) who are not subject to residency restrictions under the Sexual Assault Reform Act, and (5) who are appropriate for integrated, community-based housing programs. 333. Plaintiffs also maintain this action on behalf of a subclass comprising members of the General Class whom Defendants incarcerate past their maximum expiration date in “residential treatment facilities” pursuant to Penal Law § 70.45 or Correction Law § 73. Specifically, the RTF Subclass consists of all persons (1) housed or who will be housed in a state prison pursuant to Penal Law § 70.45 or Correction Law § 73, (2) who have serious mental illness, (3) whose maximum expiration dates have passed, (4) who are not subject to residency restrictions under the Sexual Assault Reform Act, and (5) who are appropriate for integrated, community-based housing programs. 334. The General Class and RTF Subclass are each sufficiently numerous such that joinder of all members is impracticable. Each year, thousands of individuals receiving mental health treatment are discharged from prison, with hundreds requiring community-based mental
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health housing upon release. On information and belief, there are over 20 members at any given time in the RTF Subclass.
335. The compositions of the General Class and RTF Subclass are necessarily fluid as Defendants discharge Plaintiffs from prison at their discretion and new Plaintiffs enter each class as their release dates pass.
336. Moreover, joinder is impracticable as members of the General Class and RTF Subclass are geographically diverse, placed in prisons across the state, and their incarceration, mental illness, and lack of financial resources make bringing individual suits nearly impossible.
337. Among other relief, Plaintiffs seek prospective injunctive relief on behalf of future, unknown General Class and RTF Subclass members, further making joinder impracticable.
338. Plaintiffs raise questions of fact and law that are common to each of the General Class and RTF Subclass.
339. Common questions raised as to the General Class include, but are not limited to: a. Whether Defendants institutionalize in prison individuals with serious mental illness to address their housing needs, rather than provide appropriate residential placements and services in more integrated community settings; b. Whether Defendants fail to provide, fund, and effectively utilize communitybased mental health housing programs and services so that persons with serious mental illness who have been approved for discharge from state prisons may be placed in more integrated community settings; c. Whether Defendants’ failure to provide programs, services, and supports in more integrated community settings violates the integration mandate of the Americans with Disabilities Act and the Rehabilitation Act; and d. Whether Plaintiffs are entitled to declaratory and injunctive relief to vindicate their statutory rights.
340. Common questions raised as to the RTF Subclass additionally include, but are not limited to:
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a. Whether Defendants have a policy or practice of housing individuals with serious mental illness past their maximum expiration dates;
b. Whether Defendants have a policy or practice of subjecting members of the RTF Subclass to punitive conditions in state prison;
c. Whether Defendants have a policy or practice of criminalizing RTF Subclass members’ status as individuals with serious mental illness who are homeless or at risk of homelessness by punishing them with prison confinement;
d. Whether Defendants’ actions and inaction violate the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution; and
e. Whether Plaintiffs are entitled to declaratory and injunctive relief to vindicate their constitutional rights.
341. The Named Plaintiffs’ claims are typical of the General Class and RTF Subclass. Their claims arise from the same policies and practices as the proposed class and subclass, respectively, and are based on the same legal theories.
342. The Named Plaintiffs are capable of fairly and adequately protecting the interests of the General Class and RTF Subclass. There are no conflicts that exist among the Named Plaintiffs and members of either class.
343. Plaintiffs are represented by attorneys employed by Disability Rights New York and the Prisoners’ Rights Project of The Legal Aid Society. The undersigned counsel has ample experience in litigating complex litigation, including class actions and civil rights cases, in particular involving the rights of people with mental illness and incarcerated people.
344. Defendants have acted and refused to act on grounds generally applicable to the General Class and the RTF Subclass. Injunctive and declaratory relief is appropriate respecting the class and subclass as a whole.
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FIRST CAUSE OF ACTION (Americans with Disabilities Act by All Plaintiffs and the General Class against All
Defendants) 345. Title II of the ADA prohibits Defendants from discriminating against individuals with disabilities in programs and services. 42 U.S.C. § 12132. 346. Title II also requires that “[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). 347. Plaintiffs are individuals with serious mental illness. They have mental impairments that substantially limit one or more major life activity. 348. Plaintiffs are qualified individuals with disabilities within the meaning of 42 U.S.C. § 12131(2) and 28 C.F.R. § 35.104. 349. Plaintiffs are qualified to receive services in more integrated community-based settings that meet their mental health needs. 350. Serving Plaintiffs in the most integrated settings appropriate to their needs can be reasonably accommodated and would not fundamentally alter Defendants’ programs and services. 351. Defendants DOCCS and OMH are public entities covered by Title II of the ADA. 42 U.S.C. § 12131(1)(A) and (B). 352. Defendants Cuomo, Annucci, Sullivan, and McGrath are responsible for the operation of public entities covered by Title II of the ADA. 42 U.S.C. §§ 12131(1)(A) and (B). 353. Defendants are obligated under the ADA to administer state programs in a manner that enables Plaintiffs to receive services in the most integrated setting appropriate to their needs.
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354. Defendants have failed to meet this obligation. Defendants have caused Plaintiffs to be institutionalized and segregated in state prisons, rather than provide adequate residential placements in the most integrated setting appropriate to their needs.
355. Defendants’ actions and inactions constitute discrimination in violation of Title II of the ADA, 42 U.S.C. § 12132, and its implementing regulations, 28 C.F.R. Part 35.
SECOND CAUSE OF ACTION (Rehabilitation Act by All Plaintiffs and the General Class against All Defendants)
356. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, provides: No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be the denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .
357. Section 504 also requires that: For purposes of this part, aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for handicapped and nonhandicapped persons, but must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person’s needs.
45 C.F.R. § 84.4(b)(2). 358. Plaintiffs are individuals with serious mental illness. They have mental
impairments that substantially limit one or more major life activity. 359. Plaintiffs are qualified individuals with disabilities within the meaning of 29
U.S.C. § 705(20) and 45 C.F.R. § 84.3(1). 360. Plaintiffs are qualified to participate in and receive services in more integrated
settings appropriate to their needs. 361. Defendants can reasonably accommodate Plaintiffs in the most integrated settings
appropriate to their needs.
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362. Defendants DOCCS and OMH are programs and conduct activities which receive federal financial assistance.
363. Defendants Cuomo, Annucci, Sullivan, and McGrath are responsible for programs and activities receiving federal financial assistance.
364. Defendants are obligated under Section 504 to administer programs and services for individuals with mental illness that provide the opportunity to receive services in the most integrated setting appropriate to their needs.
365. Defendants have failed to meet this obligation. Defendants’ unlawful activities and omissions have caused Plaintiffs to receive programs and services in the institutionalized and segregated setting of state prisons, rather than the most integrated setting appropriate to their needs.
366. Defendants’ failure to administer services, programs, and activities in the most integrated setting appropriate to the needs of Plaintiffs constitutes discrimination in violation of Section 504.
THIRD CAUSE OF ACTION (42 U.S.C. § 1983: Substantive Due Process by Plaintiffs C.J., M.J., J.R., D.R. and
the RTF Subclass against Defendants Annucci, Sullivan, and McGrath) 367. The Fourteenth Amendment protects against government conduct that infringes on fundamental rights and liberties. U.S. Const. amend. XIV. 368. Members of the RTF Subclass have fundamental liberty interests protected by the Due Process Clause that include, but are not limited to, freedom from bodily restraint and release from prison upon serving the maximum term of their court-imposed prison sentence. 369. Defendants have a policy and practice that deprives members of the RTF Subclass of their fundamental liberty interests by incarcerating them in state prisons following their
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maximum expiration dates, without court order, and by subjecting them to punitive conditions of confinement.
370. Defendants are deliberately indifferent to Plaintiffs’ indefinite detention in punitive conditions past their maximum expiration date.
371. Defendants assign RTF Subclass members to state prison while on RTF status, and subject them to punishment, despite the fact that they know, or should know, that these individuals require mental health housing, that there is an inadequate capacity in communitybased mental health housing programs, that their maximum expiration dates have passed, and that the legal authority to hold them in punitive conditions has ended. This conduct is not narrowly tailored to serve any compelling state interest, nor is it reasonably and necessarily related to any legitimate penological interest.
372. Plaintiffs’ continued incarceration in punitive conditions shocks the contemporary conscience.
FOURTH CAUSE OF ACTION (42 U.S.C. § 1983: Eighth Amendment by Plaintiffs C.J., M.J., J.R., D.R. and the RTF
Subclass against Defendants Annucci, Sullivan, and McGrath) 373. The Eighth Amendment, as applied to states through the Fourteenth Amendment, prohibits the imposition of cruel and unusual punishment by incarcerating individuals past their prison sentence and by criminalizing their status. U.S. Const. amend. VIII. 374. Defendants have a policy and practice of confining members of the RTF Subclass in state prisons, in punitive conditions, for significant periods of time past their maximum expiration dates because of a lack of adequate housing in the community. 375. Defendants are deliberately indifferent to Plaintiffs’ indefinite detention in punitive conditions past their maximum expiration date.
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376. Plaintiffs’ prolonged incarceration results from Defendants’ policy and practice of assigning individuals with serious mental illness to state prison pursuant to Penal Law § 70.45 or Correction Law § 73 and, while in these prisons, subjecting them to the same punitive conditions as if they were serving a prison sentence.
377. Defendants know that members of the RTF Subclass remain in prison past their maximum expiration date due to a lack of mental health housing and that they are suffering unwarranted punishment. Defendants have failed to address this unconstitutional practice.
378. Defendants subject RTF Subclass members to cruel and unusual punishment by criminalizing their status as individuals with serious mental illness who are homeless or at risk of homelessness.
379. Defendants criminalize RTF Subclass members’ inability to secure the community-based mental health housing that Defendants impose as a precondition for release and which Defendants have not made available.
380. By imposing prison confinement solely because RTF Subclass members cannot satisfy a precondition for release that is involuntary and inseparable from their status, Defendants criminalize RTF subclass members’ status.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court:
a) Certify, pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure: i. A General Class defined as: All persons (1) housed or who will be housed in a state prison, (2) with serious mental illness, (3) whose open dates for parole release, approved conditional release dates, or maximum expiration dates have passed, (4) who are not subject to residency restrictions under the Sexual Assault Reform Act, and (5) who are appropriate for integrated, community-based housing programs; and
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ii. An RTF Subclass defined as: All persons (1) housed or who will be housed in a state prison pursuant to Penal Law § 70.45 or Correction Law § 73, (2) who have serious mental illness, (3) whose maximum expiration dates have passed, (4) who are not subject to residency restrictions under the Sexual Assault Reform Act, and (5) who are appropriate for integrated, community-based housing programs.
b) Appoint the undersigned as class counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure.
c) Pursuant to Rule 57 of the Federal Rules of Civil Procedure, enter an order declaring Defendants’ conduct as alleged herein unconstitutional and unlawful under the Eighth and/or Fourteenth Amendments to the U.S. Constitution, the Americans with Disabilities Act, and the Rehabilitation Act.
d) Enter a permanent injunction requiring Defendants to promptly take the following steps that are necessary to serve Plaintiffs in the most integrated setting appropriate to their needs:
i. Developing and implementing an effective plan for providing care and treatment in the most integrated setting appropriate to the needs of individuals with serious mental illness who are being discharged from state prison, who are qualified to receive mental health services in integrated settings, and who want mental health services in a more integrated setting; and
ii. Promptly making available sufficient community-based care and treatment opportunities, including OMH-funded mental health housing, to ensure that the most integrated appropriate care and treatment is provided without undue delay to those qualified individuals being discharged from state prison who want community-based care and treatment.
e) Enjoin Defendants Annucci, Sullivan, and McGrath from subjecting the RTF Subclass to punitive conditions in state prison.
f) Award reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, 42 U.S.C. § 12205, 29 U.S.C. § 794a, and other applicable law.
g) Order such other relief as the Court deems appropriate.
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 Case 7:19-cv-00639-CS Document 47 Filed 06/03/19 Page 1 of 54

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------- x

M.G., P.C., C.J., M.J., J.R., and D.R., individually and on behalf of all similarly situated,
Plaintiffs,
-against-
ANDREW CUOMO, in his official capacity as the Governor of the State of New York, the NEW YORK STATE OFFICE OF MENTAL HEALTH, ANN MARIE T. SULLIVAN, in her official capacity as the Commissioner of the New York State Office of Mental Health, the NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, ANTHONY J. ANNUCCI, in his official capacity as the Acting Commissioner of the New York State Department of Corrections and Community Supervision, ANNE MARIE MCGRATH, in her official capacity as Deputy Commissioner of the New York State Department of Corrections and Community Supervision,

FIRST AMENDED CLASS ACTION COMPLAINT
7:19-cv-00639 (CS) (LMS)

Defendants. ----------------------------------------------------------------------- x
INTRODUCTION 1. Plaintiffs, individuals with serious mental illness who are indigent, bring this action to challenge their institutionalization in state prison. Because Defendants have failed to make available community-based housing and supportive services that Plaintiffs require upon release, Defendants hold Plaintiffs in state prison past their lawful release dates. 2. Plaintiffs bring this action on behalf of a class of people with serious mental illness whom Defendants hold in secure prisons past their release dates—including the end of their prison sentences, approved conditional release dates, and open dates for parole release—

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due to the inadequate capacity of community-based mental health housing programs (the “General Class”).
3. Plaintiffs also bring this action on behalf of a subclass of those General Class members who have been incarcerated past the maximum expiration dates of their court-imposed prison sentences (the “RTF Subclass”).
4. While claiming to have released RTF Subclass members to Residential Treatment Facilities (“RTF”), in fact, Defendants continue to hold Plaintiffs in the same prison settings and under the same conditions as their court-imposed prison sentences.
5. In effect, Defendants’ practices administratively lengthen Plaintiffs’ terms of imprisonment, undermining the most basic principle undergirding the criminal justice system: that a criminal sentence, once imposed by a judge, means what it says.
6. While residing in prison pending a vacancy in a community-based mental health housing program, Plaintiffs are not free to come and go or participate in community life.
7. Plaintiffs are locked in secure prison facilities, have no autonomy and no privacy, and continue to be treated as prisoners.
8. Plaintiffs, the General Class, and the RTF Subclass, remain in state prison waiting for community-based mental health housing for months, and in some cases over two years.
9. While confining Plaintiffs, Defendants subject them to prison rules, impose solitary confinement, and may even revoke approved release status in response to reported violations of prison rules, without that person having ever stepped outside prison walls.
10. Defendants need not isolate Plaintiffs in prisons. Defendants can make available within the existing mental health services system the integrated community-based mental health
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housing and supportive services appropriate for Plaintiffs’ needs that Defendants require for their release from prison.
11. Plaintiffs bring this action under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C § 794 (“Section 504”), to remedy Defendants’ failure to provide services to Plaintiffs in the most integrated setting.
12. On behalf of the RTF Subclass, Plaintiffs also bring this action under 42 U.S.C. § 1983 for violations of the Eighth and Fourteenth Amendments to the U.S. Constitution, to remedy the deprivation of RTF Subclass members’ fundamental liberty interests and their rights not to be subject to prolonged incarceration or criminalization of their status as individuals with mental illness who are homeless or at risk of homelessness.
13. Plaintiffs seek declaratory and injunctive relief for the unconstitutional and discriminatory practices to which they are subject.
14. Plaintiffs do not seek an order requiring their release from prison. Rather, Plaintiffs ask that Defendants make release possible by developing the community-based mental health housing programs that Defendants have imposed as a precondition for Plaintiffs’ discharge from prison, and by creating an effective plan for community integration.
15. For those Plaintiffs whose prison sentences have expired, Plaintiffs seek an end to the punitive conditions of their confinement while they await release to their communities.
JURISDICTION AND VENUE 16. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343.
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17. Declaratory and injunctive relief are sought under 28 U.S.C. §§ 1343, 2201, and 2202.
18. Venue is laid within the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to the claims occurred within this district.
THE PARTIES I. The General Class Representatives
A. M.G. 19. Plaintiff M.G. is a 56-year-old man incarcerated at Auburn Correctional Facility,
a maximum-security prison in Auburn, New York. 20. M.G. has a diagnosis of borderline personality disorder. 21. He has also struggled with depression and engaged in self-harm, particularly after
the deaths of his daughter, father, and mother. 22. The New York State Office of Mental Health (“OMH”) has determined M.G. to
be an individual with serious mental illness. 23. He is currently housed in a windowless cell in the Intermediate Care Program at
Auburn, a unit designated exclusively for incarcerated people with serious mental illness. 24. The New York Parole Board granted him an open date for parole release of May
10, 2017. 25. M.G. has been approved for release to Dutchess County. 26. M.G. will be homeless or at risk of homelessness once released from prison. 27. OMH assessed M.G. as requiring and being appropriate for community-based
mental health housing.
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28. Anticipating his own needs, M.G. had requested that he receive counseling and mental health housing upon his release from prison when meeting with his OMH discharge planner and the Parole Board.
29. M.G.’s OMH discharge planner has submitted applications for mental health housing in Dutchess County.
30. Upon reaching his open date for parole release, prison staff informed M.G. that he would not be timely released due to a determination that he can be released only to communitybased mental health housing.
31. M.G. is currently on a waiting list for a bed after being informed that there are no available beds in the community-based mental health housing that he requires.
32. M.G. remains at a correctional facility solely because he requires communitybased mental health housing and supports that Defendants have not made available.
33. M.G.’s mental health has deteriorated as a result of his continued incarceration at Auburn.
34. The stress of his continued stay and uncertainty as to duration has also disrupted his sleep and has caused him to have seizures.
35. His prolonged institutionalization also strained his marriage. When he was not released on his approved date, M.G.’s wife assumed incorrectly that it was due to some infraction or wrongdoing. M.G. and his wife have since divorced.
36. In or around April 2019, OMH staff at Auburn informed M.G. that OMH was considering releasing him to a crisis residence, a form of short-term housing that is not community-based housing.
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37. M.G. desires to reside and receive programs and services in community-based mental health housing.
B. P.C. 38. Plaintiff P.C. is a 49-year-old man incarcerated at Sullivan Correctional Facility, a
maximum-security prison in Fallsburg, New York. 39. P.C. has a diagnosis of schizophrenia. 40. He has also been diagnosed with mild intellectual disability. 41. OMH has determined P.C. to be an individual with serious mental illness. 42. He is currently housed in the Special Needs Unit at Sullivan. 43. The Special Needs Unit at Sullivan where P.C. is housed is designated exclusively
for incarcerated individuals with developmental or intellectual disabilities and adaptive behavior deficits, and houses people who are additionally diagnosed with serious mental illness.
44. The New York Parole Board granted him an open date for parole release of December 19, 2017.
45. P.C. has been approved for release to Nassau County. 46. P.C. will be homeless or at risk of homelessness once released from prison. 47. OMH assessed P.C. as requiring and appropriate for community-based mental health housing upon his discharge. 48. OMH staff submitted mental health housing applications on P.C.’s behalf to Nassau County. 49. Subsequently, OMH staff informed P.C. that they would seek housing for him in Suffolk County instead, since no beds are available in Nassau.
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50. Prison staff have informed P.C. that he will not be released because appropriate community-based mental health housing is unavailable.
51. P.C. remains at a correctional facility solely because he requires communitybased mental health housing and supports that Defendants have not made available.
52. After the filing of the original Complaint, OMH staff at Sullivan told P.C. that “Albany” had recently taken over planning for his release from the facility’s discharge planner.
53. P.C. desires to reside and receive programs and services in community-based mental health housing. II. Representatives of Both the General Class and the RTF Subclass
A. C.J. 54. Plaintiff C.J. is a 32-year-old man, whom Defendants held in state prison for 502
days past his maximum expiration date, a date that marks the end of his court-imposed prison sentence.
55. C.J. has a diagnosis of bipolar II disorder. 56. OMH determined C.J. to be an individual with serious mental illness. 57. C.J.’s maximum expiration date was September 28, 2017, as calculated by the Department of Corrections and Community Supervision (“DOCCS”). 58. DOCCS claims to have released C.J. on his maximum expiration date to a “residential treatment facility,” first at Fishkill Correctional Facility and then at Green Haven Correctional Facility. 59. In fact, C.J. was housed in prison units designated exclusively for incarcerated people with serious mental illness.
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60. C.J. has been sentenced to five years of post-release supervision in the community.
61. Prior to C.J.’s release date, DOCCS placed him in Sing Sing Correctional Facility’s Community Orientation and Re-entry Program (“CORP”), a program for people with serious mental illness who are nearing release from prison.
62. CORP is designed to prepare people with serious mental illness for community integration and a component of the program is focused on securing housing.
63. On July 21, 2017, C.J.’s OMH discharge planner completed a discharge summary for C.J., which noted that C.J. would be homeless and would require community-based mental health housing and supports upon release from prison.
64. On August 1, 2017, C.J.’s OMH discharge planner submitted an application for community-based mental health housing and services in Orange County on C.J.’s behalf.
65. Specifically, the application identified a supportive treatment apartment or individual supported housing as appropriate for C.J. Both models of housing allow residents to live in integrated community settings.
66. While enrolled in CORP, C.J.’s OMH counselor informed C.J. that he would not be released at the end of his prison sentence and would be held past his maximum expiration date.
67. In September 2017, C.J. was directed to sign papers related to “residential treatment facility” status.
68. C.J. was transferred to Fishkill Correctional Facility following the end of his prison sentence and placed in the prison’s Intermediate Care Program and Transitional Intermediate Care Program.
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69. Subsequently, DOCCS transferred C.J. to the Green Haven Correctional Facility and placed him in single cells in the prison’s Transitional Intermediate Care Program and Intermediate Care Program.
70. Despite his nominal “release” status, C.J. was housed in prison and subject to prison conditions for the entirety of time following his maximum expiration date until his release.
71. C.J. remained at correctional facilities solely because he required communitybased mental health housing and supports that Defendants had not made available.
72. OMH staff told C.J. that there were few resources in the community for him and he needed to be patient.
73. C.J. earned a GED and vocational certificate in prison and planned to search for a job upon release. Due to his delayed release, he was unable to act on those plans.
74. C.J. experienced serious psychiatric harm due to his prolonged incarceration. C.J. repeatedly engaged in self-harm and expressed his desire to die rather than remain in prison.
75. C.J. was admitted to a crisis observation cell and was repeatedly placed on suicide watch, including when his birthday approached and he informed prison staff that he had lost hope of going home.
76. C.J. wanted to return to Orange County, where his family and support system reside.
77. As a result of his prolonged incarceration, his family relationship suffered. C.J. was due to be released shortly before his young daughter’s birthday, and he expected to celebrate with her for the first time in a decade. Since his release date was in early fall, he also planned to spend the holidays with family.
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78. On January 30, 2019, seven days after Plaintiffs filed this action, OMH staff at Green Haven completed a revised discharge plan for C.J. Under this plan, C.J.’s proposed release address was changed to the Middletown Transitional Residence in Middletown, New York.
79. The Middletown Transitional Residence is operated by OMH, and is located on the campus of the Rockland Psychiatric Center – Middletown Campus. It is intended to be temporary housing and is not the community-based mental health housing identified as appropriate for C.J.
80. On February 7, 2019, C.J.’s OMH pre-release coordinator at Green Haven completed a revised application for mental health housing and services in Orange County. Though C.J. was still held at Green Haven at that time, the application listed his address as the Middletown Transitional Residence.
81. Like the 2017 application, the February 2019 application identified individual supported housing as appropriate for C.J. This model of housing allows residents to live independently in integrated settings in the community.
82. Parole staff approved C.J.’s discharge to the Middletown Transitional Residence on February 8, 2019.
83. On or about February 11, 2019, an OMH discharge planner called C.J. to her office. At this meeting, the discharge planner informed C.J. that she had received an urgent email from “Albany” and directed C.J. to complete his discharge paperwork.
84. On February 12, 2019, C.J. was released to the Middletown Transitional Residence.
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85. C.J. was incarcerated at Green Haven past his maximum expiration date on residential treatment facility status as of January 23, 2019, the date that the original Complaint in this action was filed.
86. C.J. could not predict the length of his prolonged incarceration. 87. After the filing of the original Complaint, the timing of C.J.’s discharge was within Defendants’ discretion. 88. C.J. has not received the community-based housing that OMH identified as appropriate for him. 89. C.J. desires to reside and receive programs and services in community-based mental health housing. B. M.J. 90. Plaintiff M.J. is a 33-year-old man, whom Defendants held in state prison for 246 days past his maximum expiration date. 91. M.J. has a diagnosis of bipolar disorder. 92. OMH determined M.J. to be an individual with serious mental illness. 93. M.J.’s maximum expiration date—signaling the end of his court-imposed prison sentence—was June 18, 2018, as calculated by DOCCS. 94. DOCCS claims to have released him on his maximum expiration date to a “residential treatment facility,” first at Fishkill Correctional Facility and then at Green Haven Correctional Facility. 95. In fact, M.J. was housed in prison units designated exclusively for incarcerated people with serious mental illness.
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96. M.J. has been sentenced to five years of post-release supervision in the community.
97. Prior to June 18, 2018, M.J. was housed in Great Meadow Correctional Facility’s Intermediate Care Program.
98. At Great Meadow, M.J. met with an OMH discharge planner assigned to the Intermediate Care Program and completed government benefits applications.
99. M.J.’s OMH discharge planner confirmed that M.J. will be homeless or at risk of homelessness once released from prison, and requires and is appropriate for community-based mental health housing.
100. In April 2018, M.J.’s OMH discharge planner submitted an application for community-based mental health housing and services in Orange County on M.J.’s behalf.
101. The application identified a supervised community residence as appropriate for M.J. This model of mental-health housing provides on-site services and supervision for residents, typically in private living units. The application also requested that M.J. receive Assertive Community Treatment services.
102. Instead of releasing M.J. on his maximum expiration date, DOCCS informed M.J. that he would be admitted to a “residential treatment facility,” and DOCCS directed M.J. to sign papers related to residential treatment facility status.
103. M.J. was transferred to the Fishkill Correctional Facility’s Intermediate Care Program on or about the maximum expiration date of his prison sentence.
104. Subsequently, DOCCS transferred M.J. to the Green Haven Correctional Facility’s Intermediate Care Program.
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105. Despite his nominal “release” status, M.J. was housed in prison and subject to prison conditions for the entirety of time following his maximum expiration date until his release.
106. M.J. was informed that limited community-based mental health housing in Newburgh contributed to the delay of his release to Orange County.
107. M.J. remained at correctional facilities solely because he required communitybased mental health housing and supports that Defendants had not made available.
108. Even though segregated confinement is known to be harmful to people with serious mental illness, Defendants placed M.J. in punitive segregated confinement twice while on “residential treatment facility” status, placing M.J. at risk of harm from psychiatric decompensation.
109. M.J. wanted to return to Orange County, where he grew up and where his family support system resides.
110. On January 30, 2019, seven days after Plaintiffs filed this action, OMH staff at Green Haven completed a revised discharge plan for M.J. Under this plan, M.J.’s proposed release address was changed to the Middletown Transitional Residence in Middletown, New York.
111. On February 13, 2019, M.J.’s OMH discharge planner at Green Haven completed a revised application for mental health housing and services in Orange County. Though M.J. was still held at Green Haven at that time, the application listed his address as the Middletown Transitional Residence.
112. The application identified individual supported housing as appropriate for M.J. This model of mental-health housing allows residents to live independently in integrated settings
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in the community. Unlike the prior application, the February 2019 application did not request Assertive Community Treatment services for M.J.
113. On February 19, 2019, M.J. was released to the Middletown Transitional Residence, one week after Plaintiff C.J. was released to this same location.
114. M.J. was incarcerated at Green Haven past his maximum expiration date on residential treatment facility status as of January 23, 2019, the date that the original Complaint in this action was filed.
115. M.J. could not predict the length of his prolonged incarceration. 116. After the filing of the original Complaint, the timing of M.J.’s discharge was within Defendants’ discretion. 117. M.J. has not received the community-based housing that OMH identified as appropriate for him. 118. M.J. desires to reside and receive programs and services in community-based mental health housing. C. J.R. 119. Plaintiff J.R. is a 35-year-old man, whom Defendants held in state prison for 284 days past his maximum expiration date. 120. J.R. has diagnoses of depressive disorder and post-traumatic stress disorder. 121. OMH determined J.R. to be an individual with serious mental illness. 122. J.R. has attempted self-harm on multiple occasions. 123. J.R.’s maximum expiration date—signaling the end of his court-imposed prison sentence—was June 7, 2018, as calculated by DOCCS.
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124. He has been sentenced to three years of post-release supervision in the community.
125. DOCCS claims to have released him on his maximum expiration date to the nominal “residential treatment facility” at Fishkill.
126. In fact, J.R. was housed with individuals serving a sentence of imprisonment at the prison.
127. J.R. received an approved conditional release date of November 9, 2017. 128. On his conditional release date, J.R.’s prison counselor informed him that he would not be released on that day. 129. Months before the expiration of J.R.’s prison sentence, J.R.’s OMH discharge planner submitted an application on J.R.’s behalf for community-based mental health housing and services in Dutchess County, where J.R. lived before his incarceration. 130. DOCCS issued a memorandum on or about June 4, 2018 advising J.R. that, pursuant to a condition established by the Parole Board, he would be transferred to a “residential treatment facility” upon the expiration of his sentence for a period not to exceed six months. 131. On June 7, 2018, the maximum expiration date of J.R.’s prison sentence, he was not released from prison. 132. J.R.’s counselor informed him that he would not be released because he has serious mental illness and requires community-based mental health housing, which neither DOCCS nor OMH had secured for him. 133. J.R.’s counselor also directed J.R. to sign documents that were presented to him as “release papers.”
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134. His counselor informed J.R. that DOCCS no longer considered him an “inmate,” but rather a “parolee.”
135. DOCCS continued to hold J.R. in the same housing unit, under the same conditions, where he had been incarcerated up to that time.
136. Despite his nominal “release” status, J.R. was housed in prison and subject to prison conditions for the entirety of time following his maximum expiration date until his release.
137. During this time, J.R. proposed the addresses of several family members, including his sister and cousin, as residences to which he could be released. DOCCS did not approve these residences as suitable for his release.
138. J.R. participated in several interviews with providers of community-based mental health housing.
139. Several providers could not admit J.R. to their program because they lack available beds.
140. J.R. remained at a correctional facility solely because he required communitybased mental health housing and supports that Defendants had not made available.
141. On March 18, 2019, J.R. was released to the Rockland Psychiatric Center’s Alliance House in Poughkeepsie, New York.
142. Alliance House is not the community-based housing that OMH identified as appropriate for him.
143. In fact, Alliance House is a crisis residence operated by OMH, which offers shortterm housing for up to 21 days. According to the state’s website, the crisis residence is “not intended as a substitute for housing.”
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144. J.R. was incarcerated at Fishkill past his maximum expiration date on residential treatment facility status as of January 23, 2019, the date that the original Complaint in this action was filed.
145. J.R. could not predict the length of his prolonged incarceration. 146. After the filing of the original Complaint, the timing of J.R.’s discharge was within Defendants’ discretion. 147. J.R. desires to reside and receive programs and services in community-based mental health housing. D. D.R. 148. Plaintiff D.R. is a 36-year-old man, whom Defendants held in state prison for 411 days past his maximum expiration date. 149. D.R. has a diagnosis of bipolar disorder. 150. OMH determined D.R. to be an individual with serious mental illness. 151. D.R.’s maximum expiration date—signaling the end of his court-imposed prison sentence—was December 29, 2017, as calculated by DOCCS. 152. He has been sentenced to post-release supervision in the community to last until March 4, 2021. 153. DOCCS claims to have released D.R. on his maximum expiration date to the “residential treatment facility” at Fishkill Correctional Facility. 154. In fact, D.R. was housed in a dormitory at the prison, primarily with people who have been convicted of sex offenses despite the fact that D.R. does not have any convictions for sex offenses.
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155. In late December 2017, while D.R. was still confined at Mid-State Correctional Facility, DOCCS and OMH staff presented D.R. with “release papers” and directed D.R. to sign them.
156. On or about December 29, 2017, D.R.’s counselor informed him that he would be transferred to Fishkill.
157. OMH staff also informed D.R. that he would not be released to the community upon the expiration of his prison sentence.
158. D.R. received a memorandum dated May 29, 2018 from Defendant McGrath, noting that he would continue to be placed in a “residential treatment facility” because “an approved residence [for his release] has not yet been identified.” This memorandum explained that he would remain at the residential treatment facility “until such time as you have proposed and DOCCS has approved a suitable residence.”
159. D.R. continued to be incarcerated in prison and subject to prison conditions at Fishkill after receiving this memorandum.
160. Both before and after the maximum expiration date of his prison sentence, D.R. met with discharge planners to discuss his history of homelessness and need for communitybased mental health housing and supportive services, such as case management.
161. D.R.’s discharge planner submitted an application for community-based mental health housing and services on D.R.’s behalf to Nassau County.
162. D.R. participated in multiple interviews with providers of community-based mental health housing.
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163. Despite his nominal “release” status, D.R. was housed in prison and subject to prison conditions for the entirety of time following his maximum expiration date until his release.
164. During this time, D.R. was placed in segregated confinement at the prison as punishment for disciplinary infractions, even after the expiration of his prison sentence.
165. D.R. proposed that he be released to his aunt’s home. This address was not approved as suitable for his release.
166. D.R. remained at a correctional facility solely because he required communitybased mental health housing and supports that Defendants had not made available.
167. D.R.’s mental health significantly deteriorated as a result of his prolonged incarceration. He also experienced periods of frustration and sadness regarding his prolonged incarceration.
168. D.R.’s OMH counselor indicated that he was exhibiting symptoms of “paranoia.” 169. D.R. expected that after he was released at the end of his prison sentence, he would study to take a GED exam and find employment. 170. D.R. also expected that after he was released at the end of his prison sentence, he would spend time with his family, particularly during holidays. 171. On February 13, 2019, D.R. was released to the Pilgrim Crisis Residence in Brentwood, New York. 172. Pilgrim Crisis Residence is not the community-based housing that OMH identified as appropriate for him.
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173. In fact, Pilgrim Crisis Residence is short-term housing located on the grounds of Pilgrim Psychiatric Center, which is a state psychiatric hospital. According to the state’s website, the crisis residence is “not intended as a substitute for housing.”
174. On information and belief, Pilgrim Crisis Residence is intended to serve patients ready for discharge from the psychiatric hospital.
175. D.R. was incarcerated at Fishkill past his maximum expiration date on residential treatment facility status as of January 23, 2019, the date that the original Complaint in this action was filed.
176. D.R. could not predict the length of his prolonged incarceration. 177. After the filing of the original Complaint, the timing of D.R.’s discharge was within Defendants’ discretion. 178. D.R. desires to reside and receive programs and services in community-based mental health housing. III. Defendants A. Governor Andrew Cuomo 179. Defendant Andrew Cuomo is the Governor of the State of New York, a public entity covered by the ADA and Section 504. N.Y. Const. Art. 4, § 1. 180. Defendant Cuomo is responsible for supervising and controlling DOCCS and OMH, seeking and expending funds to implement the programs and deliver the services of those agencies, and taking care that the laws of the State of New York are faithfully executed. N.Y. Const. Art. 4, § 3; Art. 5, § 4; Art. 7, § 2. 181. Defendant Cuomo appoints the commissioners of OMH and DOCCS, who serve at his pleasure. N.Y. Const. Art. 5, § 4; Art. 13, § 2.
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182. Defendant Cuomo oversees inter-agency coordination between OMH and DOCCS.
183. Defendant Cuomo oversees, directs, and funds New York State’s efforts to provide community-based mental health housing and supportive services to people with serious mental illness released from prison.
184. Defendant Cuomo receives reports on the mental health system and is involved in developing policies to address the needs of people with mental illness and to encourage their full participation in society. N.Y. Mental Hyg. Law §§ 5.07, 7.07(b); N.Y. Exec. Law § 164.
185. In 2012, Defendant Cuomo established an Olmstead Cabinet pursuant to Executive Order No. 84, appointed the Cabinet’s Chair, and charged the Cabinet with providing recommendations to him for development, implementation, and coordination of an Olmstead Plan to meet the requirements of the ADA.
186. Defendant Cuomo appoints members to and receives reports from New York State’s Most Integrated Setting Coordinating Council, which is required to ensure that individuals with disabilities receive services in the most integrated setting appropriate to their needs. N.Y. Exec. Law §§ 702; 703(1), (4).
187. Defendant Cuomo is sued in his official capacity. B. New York State Office of Mental Health
188. Defendant OMH is charged by statute with the “responsibility for seeing that mentally ill persons are provided with care and treatment, that such care, treatment and rehabilitation is of high quality and effectiveness, and that the personal and civil rights of persons receiving care, treatment and rehabilitation are adequately protected.” N.Y. Mental Hyg. Law § 7.07(c).
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189. Defendant OMH is required to develop a comprehensive, integrated system that ensures people with mental illness receive services in their communities whenever possible and that sparingly utilizes institutions to provide care.
190. Defendant OMH enforces the laws and regulations applicable to mental health units within the DOCCS system and is responsible for developing, implementing and overseeing New York State’s community-based mental health housing programs and supportive services.
191. Defendant OMH is a public entity covered by the ADA and Section 504. C. Commissioner Ann Marie T. Sullivan
192. Defendant Ann Marie T. Sullivan is the Commissioner of OMH, a public entity covered by the ADA and Section 504.
193. Defendant Sullivan is responsible for the administration and operation of OMH, including the provision of services to individuals with mental illness who are incarcerated and discharged from prison. She is responsible for establishing standards for operating and funding a continuum of community-based mental health housing. N.Y. Mental Hyg. Law § 41.44; N.Y. Correct. Law §§ 401, 404.
194. Defendant Sullivan is also responsible for determining what services to provide, in what setting to provide them, and how to allocate funds for each program and where to allocate such funds. N.Y. Mental Hyg. Law § 7.15.
195. Defendant Sullivan oversees OMH’s coordination and planning with local governments to ensure that care, treatment, and rehabilitation may be received in people’s home communities. N.Y. Mental Hyg. Law §§ 7.01, 7.07(a).
196. Defendant Sullivan is sued in her official capacity.
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D. New York State Department of Corrections and Community Supervision 197. Defendant DOCCS enforces the laws and regulations applicable to New York
State prisons. 198. Defendant DOCCS is statutorily responsible for the confinement and habilitation
of individuals placed in state correctional facilities and for their programming, supervision, and the conditions of their confinement.
199. Defendant DOCCS is also responsible for the management of individuals released to community supervision.
200. Defendant DOCCS is a public entity covered by the ADA and Section 504. E. Commissioner Anthony J. Annucci
201. Defendant Anthony J. Annucci is the Acting Commissioner of DOCCS, a public entity covered by the ADA and Section 504.
202. Defendant Annucci is responsible for the administration and operation of DOCCS, including the care, custody, parole, and post-release supervision of individuals with mental illness who are incarcerated and discharged from prison. N.Y. Correct. Law § 201.
203. Defendant Annucci is charged with the “management and control of persons released on community supervision” and inquiring “into all matters connected with said community supervision.” N.Y. Correct. Law § 112(2).
204. Defendant Annucci is sued in his official capacity. F. Deputy Commissioner Anne Marie McGrath
205. Defendant Anne Marie McGrath is a Deputy Commissioner of DOCCS, a public entity covered by the ADA and Section 504.
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206. Defendant McGrath is responsible for managing the inmate population, including all movement and transportation of incarcerated people and the transfer and placement of incarcerated people in residential treatment facilities.
207. Defendant McGrath is sued in her official capacity. FACTUAL ALLEGATIONS
I. Defendants are Responsible for Ensuring that Plaintiffs are Discharged to Community-Based Mental Health Housing Programs on the Date of their Release from State Prison. 208. Defendants are responsible for planning for the release from New York State
prisons of people with serious mental illness who are homeless or at risk of homelessness. 209. Defendants are responsible for making available adequate community-based
mental health housing programs for this population. A. The Integration Mandate of the ADA and Section 504 210. Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, and Section
504 of the Rehabilitation Act, 29 U.S.C. § 794, prohibit discrimination against individuals with disabilities, including those with mental illness.
211. 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.
212. Similarly, Section 504 states that “no otherwise qualified individual with a disability in the United States . . . 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).
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213. Implementing regulations for the ADA and Section 504 require 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); 28 C.F.R. § 41.51(d); see also 45 C.F.R. § 84.4(b)(2). An integrated setting is one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. part 35, App. B. These statutes and regulations are often referred to collectively as the “integration mandate.”
214. In Olmstead v. L.C., 527 U.S. 581 (1999), the U.S. Supreme Court held that a state’s failure to place a person with mental illness in the most integrated setting appropriate for his or her needs constitutes discrimination on the basis of disability, in violation of the integration mandate of the ADA.
B. New York State’s Community-Based Mental Health Housing Programs 215. OMH is responsible for developing community-based mental health housing
programs for people who are released from state prisons and for ensuring that people with serious mental illness who are homeless or at risk of homelessness upon release receive assistance with obtaining housing that addresses their individualized needs.
216. Community-based mental health housing for this population encompasses a continuum of housing models that provide different levels of supervised treatment and care coordination tailored to residents’ needs.
217. People who need greater supervision or assistance developing independent living skills generally reside in a more service-intense housing model, such as an apartment treatment program. These programs are intended to be transitional, allowing people to progress to a model that affords greater independence.
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218. People with greater independent living skills generally reside in a single room occupancy residence or scattered-site supported housing. Both models are considered permanent housing.
219. While OMH community-based housing models vary in terms of capacity, services, and location, each offers significantly greater opportunities to participate in the community than prisons, which afford no such opportunities. II. New York Has a Comprehensive Scheme for Release of Individuals with Serious
Mental Illness from Prison. 220. Defendants are responsible for discharging Plaintiffs from state prison to community-based mental health housing that meets their mental health needs in the most integrated setting. A. Categories of Release to Community Supervision 221. People serving indeterminate sentences—sentences with minimum and maximum terms of imprisonment—may be released to parole after completing their minimum term of imprisonment. 222. The New York State Board of Parole—an independent, quasi-judicial body within DOCCS—is authorized to grant or deny parole in its discretion, subject to certain criteria provided in state law and regulations. 223. If parole is granted, the Parole Board sets an “open date for parole release.” 224. A person who receives an open date for parole release is known as a “parole grantee.” 225. If a person is not released on parole, they may next be released on their “conditional release” date if they have earned statutory “good time.” Conditional release is not available to people sentenced to life.
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226. Each DOCCS prison’s Time Allowance Committee meets approximately four months before an individual’s presumptive conditional release date to approve the release date based on good behavior and program participation.
227. DOCCS will not discharge from prison any person who had been granted parole or conditional release until DOCCS approves an anticipated community residence for that person.
228. A person not released to parole or conditional release will remain in prison until their “maximum expiration date,” the last day of their sentence.
229. On the maximum expiration date, DOCCS loses legal authority to incarcerate the person pursuant to their sentence.
230. DOCCS calculates and records each person’s parole eligibility, conditional release, and maximum expiration dates upon admission to DOCCS custody.
231. In 1998, the New York State Legislature passed “Jenna’s Law,” which required courts to impose a period of “post-release supervision” after a determinate sentence (a sentence with a single term of imprisonment).
232. Like parole, post-release supervision is a form of “community supervision” that subjects the individual to DOCCS’s oversight after release from prison.
233. According to the legislative history for Jenna’s Law, post-release supervision was intended to ensure that offenders will be successfully reintegrated into society.
234. Post-release supervision terms “commence upon the person’s release from imprisonment to supervision.” N.Y. Penal Law § 70.45(5).
235. DOCCS identifies individuals released from prison to community supervision— whether on parole, conditional release, or post-release supervision—as “releasees.”
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236. The Parole Board is responsible for setting conditions of release for releasees. 237. Certain general conditions apply to all releasees, such as prohibitions on the possession of drug paraphernalia and firearms. 238. The Parole Board may also impose so-called “special conditions.” These conditions may include a requirement to cooperate with mental health evaluation referrals and treatment as directed by the parole officer, a prohibition on communication with certain individuals, a requirement to abide by curfews, and requirements to engage in substance abuse, alcohol abuse, and anti-aggression counseling. B. Preparing People with Serious Mental Illness for Release from Prison 239. OMH and DOCCS share responsibility for discharging people with serious mental illness from prison, including by planning for, assessing, and approving housing in the community to which they may be released. 240. Annually, approximately 2,050 people with serious mental illness are discharged from New York State prisons to the community. 241. OMH identifies people with serious mental illness by assigning them an “Sdesignation” or an OMH “Level 1” or “Level 2” classification. 242. OMH is required to provide a comprehensive discharge plan to every person with serious mental illness who is preparing to return to the community from prison. 243. As part of the discharge planning process, OMH counselors are required to meet with people with serious mental illness at least six months prior to their scheduled release date to assess their needs upon release, including housing needs. 244. OMH must prepare and submit a Single Point of Access application to secure for the individual the community-based mental health housing and any other necessary services in the county to which they will return.
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245. If a person with serious mental illness will be homeless upon release, is at risk of homelessness, or otherwise requires mental health housing, OMH staff must apply for housing using the Single Point of Access application.
246. OMH’s preparation of a Single Point of Access application for housing reflects its assessment that the person is eligible and appropriate for community-based mental health housing.
247. DOCCS staff collaborate with OMH in planning for a person’s housing needs and developing a release plan that includes suitable housing in the community.
248. As part of that collaboration, DOCCS counselors ask each person with serious mental illness to propose a residence to which he or she can be released.
249. DOCCS parole staff are responsible for investigating the proposed residence. 250. DOCCS has the final authority to approve or reject the proposed residence. 251. Pursuant to OMH policy, an individual is deemed homeless or at risk of homelessness if he or she has submitted a proposed address that DOCCS has rejected. 252. As many incarcerated people lack housing and financial resources, many propose a local homeless shelter as their residence. 253. Defendants often reject shelters, however, as not suitable for people with serious mental illness. 254. Because their proposed residence is often rejected, indigent people with serious mental illness are often left with only one suitable housing option upon release from prison—the community-based mental health housing OMH deemed them eligible and appropriate for. 255. Plaintiffs are individuals forced by Defendants to remain incarcerated in prison beyond their open dates for parole release, approved conditional release dates, and maximum
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expiration dates when no community-based mental health housing is available at the time they legally should be free.
C. The “Release” of People with Serious Mental Illness to State Prison on RTF Status 256. New York law authorizes DOCCS to transfer individuals who are released to
post-release supervision status, having reached their maximum expiration dates, to an RTF. 257. New York law defines RTFs as community-based placements that promote a
person’s reintegration into society: “Residential treatment facility” [is a] correctional facility consisting of a community based residence in or near a community where employment, educational and training opportunities are readily available for persons who are on parole or conditional release and for persons who are or who will soon be eligible for release on parole who intend to reside in or near that community when released.
N.Y. Correct. Law § 2(6). 258. The New York Correction Law further requires DOCCS to secure education,
employment, rehabilitation, and reintegration services for individuals placed in RTFs. 259. A releasee placed in an RTF “may be allowed to go outside the facility during
reasonable and necessary hours to engage in any activity reasonably related to his or her rehabilitation and in accordance with the program established for him or her.” N.Y. Correct. Law § 73.
260. Two New York statutes authorize DOCCS to place an individual who is released to post-release supervision in an RTF.
261. Penal Law § 70.45(3) provides that the Parole Board may require a time-limited RTF placement as a special condition of community supervision:
[T]he board of parole may impose as a condition of post-release supervision that for a period not exceeding six months immediately following release from the underlying term of imprisonment the person be transferred to and participate in the programs of a residential treatment facility as that term is defined in subdivision six of section two of the correction law [as quoted in paragraph 257 above].
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262. If the Parole Board imposes RTF placement as a condition of post-release supervision, DOCCS, not the Board, is responsible for selecting the specific RTF to which the individual will be transferred and for supervising the individual while placed there.
263. Correction Law § 73(10) separately provides that: The commissioner [of DOCCS] is authorized to use any residential treatment facility as a residence for persons who are on community supervision. Persons who reside in such a facility shall be subject to conditions of community supervision imposed by the board. 264. Therefore, even if the Parole Board does not impose RTF placement as a condition of release, the Correction Law authorizes DOCCS to transfer an individual on postrelease supervision to an RTF placement. 265. Pursuant to Correction Law § 70, DOCCS commissioners have designated 13 correctional facilities, spread across the state, to function as RTFs: Green Haven, Wende, Fishkill, Woodbourne, Orleans, Mohawk, Mid-State, Hudson, Albion, Rochester, Queensboro, and Lincoln Correctional Facilities, as well as Edgecombe Residential Treatment Facility. These 13 facilities also function as general correctional facilities for incarcerated individuals serving their sentences. 266. The majority of facilities designated as RTFs are medium or maximum security level prisons. 267. There are no separate “residential treatment facilities” in the prison compounds where Plaintiffs are incarcerated. 268. Plaintiffs are subjected to the same conditions and restrictions of prison confinement as they have been since they began their sentences. Even though Plaintiffs are labelled “releasees,” in reality they remain prisoners in every respect.
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III. Defendants Fail to Place Plaintiffs in the Most Integrated Setting Appropriate to their Needs. 269. Defendants confine Plaintiffs in prison past their open dates for parole release,
approved conditional release dates, and maximum expiration dates because there is inadequate capacity in the community-based mental health housing described in Section I(B) above.
A. Defendants Fail in their Mandate to Serve the Housing Needs of People with Serious Mental Illness Released from State Prison. 270. Defendants Cuomo, Sullivan, and OMH are responsible for providing necessary
community-based mental health housing programs for Plaintiffs as they are people with serious mental illness.
271. The stated goal of OMH’s housing programs is to provide integrated housing, enabling residents to live independently, to succeed in the community, and to interact with nondisabled persons to the fullest extent possible.
272. OMH has repeatedly recognized the importance of providing community-based mental health housing to members of this population who would otherwise be homeless upon their release.
273. OMH has systematically failed to address the foreseeable need for adequate capacity in community-based mental health housing programs to meet the demands of this population.
274. OMH knows of and has failed to respond to counties’ local needs for an adequate number of community-based mental health housing beds generally and specifically for people with serious mental illness released from prison.
275. County personnel who process Single Point of Access applications for incarcerated people report back to OMH staff about the availability of community-based mental health housing beds.
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276. Recognizing the importance of collaboration among state and local agencies, Defendant Cuomo established the Council on Community Re-Entry and Reintegration (the “ReEntry Council”) in 2014 to provide recommendations regarding the reentry of people into the community from prison. Members of the Governor’s Office sit on this council.
277. Defendant Cuomo has adopted recommendations by the Re-Entry Council regarding the need to create additional community-based mental health housing for people released from prison.
278. Defendant Cuomo’s adoption of these recommendations led to the development of some community-based mental health housing for people released from prison.
279. The number of beds created for people released from prison has been inadequate to meet discharge planning needs.
280. Across the state, counties have continued to describe their lack of capacity to meet the need for mental health housing in reports to OMH.
281. Defendant Cuomo has directed funding to local agencies to coordinate services for people with serious mental illness who are released from prison, but he has done so for approximately only one-third of New York’s counties.
282. As a result, there are inadequate services for people with serious mental illness reentering the community from prison.
283. Although Defendant Cuomo and OMH have announced initiatives to develop housing for vulnerable populations, including scattered-site supported housing specifically for people released from prison, these initiatives are insufficient in light of the annual number of people being released from prison who need community-based housing.
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284. Plaintiffs routinely remain on waiting lists for community-based mental health housing for months, and they remain institutionalized in prison, in some cases over two years.
285. As a result of inadequate capacity in mental health housing programs throughout the state, Plaintiffs remain in prison beyond their open dates for parole release, approved conditional release dates, and maximum expiration dates.
B. Defendants Institutionalize Plaintiffs in Segregated and Punitive Prison Conditions Inappropriate for Individuals with Serious Mental Illness Approved for Release to the Community. 286. Prison is a segregated setting. 287. In prison, Plaintiffs have no meaningful ability to engage in mainstream society. 288. Plaintiffs are held in rural, geographically isolated regions, with no nearby public
transportation and far from the communities to which they will return. 289. Defendants do not allow Plaintiffs to leave the prison at any time, even when they
demonstrate good behavior and there has been no finding that they pose a threat to the safety or welfare of the community.
290. Plaintiffs are unable to attend job interviews, visit their home towns or cities, or pursue education in the community.
291. While in prison, Plaintiffs are often housed in separate specialized units for people with serious mental illness and other disabilities.
292. While these units provide services to help incarcerated people with disabilities manage a secure environment, Plaintiffs have few opportunities to interact with non-disabled people.
293. Even when not housed in specialized units in prison, Plaintiffs have fewer opportunities to interact with non-disabled people than they would in the community due to the high prevalence of disabilities in state prison.
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294. Plaintiffs are housed in cells or dorms. 295. Cells are locked with a metal-barred door and may not have a window to the outof-doors. 296. In dorms, people are assigned to a “cube” consisting of their bed and a small area for their possessions. 297. Prison rules restrict the quantity and type of personal property Plaintiffs may possess. 298. Plaintiffs are afforded no autonomy or choice in their daily life activities. 299. Plaintiffs are required to wear prison uniforms. 300. Plaintiffs are not permitted to pursue hobbies, programs, or activities according to their interests and personal goals. 301. If they need to purchase anything, Plaintiffs may do so only from the prison commissary or private vendors, or rely on family or friends to send a care package that complies with prison rules. 302. Plaintiffs’ day and night are determined by Defendants according to the prison schedule. They eat, sleep, shower, and exercise only as dictated by DOCCS’s schedule and rules. 303. Plaintiffs have no freedom of movement in the facility. 304. Plaintiffs must abide by rigid rules on escort and movement procedures, such as standing at painted markings on the floors of the prison that direct prisoners where to pause or walk. 305. Plaintiffs are subject to prison rules and procedures related to shackles and restraints.
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306. In fact, Plaintiffs who have experienced mental health crises have been required to wear shackles when escorted outside their observation cells.
307. Security considerations, prison protocol and rules, and the availability of prison resources restrict Plaintiffs’ mental health treatment.
308. Plaintiffs who exhibit suicidal or self-injurious behavior, for example, may be placed in stark observation cells, tantamount to solitary confinement, where they are stripped naked, required to wear tear-proof smocks, and held for prolonged periods of time.
309. Plaintiffs are subject to prison discipline for as long as they remain in prison. 310. Despite the well-known risk of serious harm to psychiatric condition, prison staff frequently subject Plaintiffs to disciplinary segregated confinement, including for minor infractions. 311. In addition, Plaintiffs may receive disciplinary sanctions depriving them of telephone calls, visits, and packages from friends and family. 312. DOCCS may even rely on rule violations to revoke Plaintiffs’ open dates for parole release, parole status, conditional release, or post-release supervision, all without the individual having ever left prison. 313. Some Plaintiffs are so fearful of receiving disciplinary “tickets” from prison staff that they refuse to leave their cell or avoid interactions with other individuals. 314. Plaintiffs are subject to the prisons’ rigid rules on visits from family and loved ones. 315. Family members must plan visits only on certain days, travel to the prison (for some, many hours away from their home), go through invasive security checks, and have timelimited visits in crowded and noisy visiting areas while being monitored by corrections officers.
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316. Family connections become strained, and even lost, as Plaintiffs remain in prison past their release dates.
317. Plaintiffs are also subject to the stigma of continued incarceration. An individual’s support network may not understand why their loved one remains in prison and assume it is because of some wrongdoing or unknown infraction.
318. Plaintiffs are subject to prison rules limiting confidential communications with their attorneys.
319. Prisons provide no meaningful opportunity for people with mental illness to learn to re-enter the community.
320. In this segregated security environment, Plaintiffs have no opportunities to obtain basic life skills—such as how to use a cell phone, how to add money to a public transportation fare card, how to manage a limited budget to care for personal needs, or how to use the internet to find doctors, housing, and services.
321. Plaintiffs could develop skills integral to functioning independently and reintegrating into modern society in community-based mental health housing.
C. Plaintiffs Are People with Disabilities Who Are Qualified to Receive Services in a More Integrated Setting. 322. Plaintiffs and class members are people with mental illnesses, such as bipolar
disorder, schizophrenia, depressive disorder, post-traumatic stress disorder, and others, which substantially limit one or more major life activities, including but not limited to caring for oneself, speaking, learning, concentrating, thinking, communicating, and sleeping.
323. Plaintiffs are qualified for community-based mental health housing upon their release from prison based on their current mental illness diagnosis and substantial limitations.
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324. Plaintiffs belong to the target population for community-based mental health housing developed through housing initiatives supported by Defendant Cuomo.
325. Additionally, Plaintiffs belong to at least two priority populations identified by OMH for community-based mental health housing: the forensic population (namely individuals released from jails and prisons) and individuals who are homeless.
326. In accordance with OMH policy, Defendants identified Plaintiffs’ need for community-based mental health housing through discharge planning, periodic meetings, and assessments, and then prepared referrals to community-based services, including housing, case managers, and mental health treatment providers.
327. OMH also submitted Single Point of Access applications to the counties to which Plaintiffs will be released.
328. Nonetheless, Plaintiffs did not receive the community-based services for which they are qualified because they were instead kept in prison.
329. Plaintiffs’ confinement in prison is not based on Defendants’ determination that such placement is clinically necessary.
330. Plaintiffs are confined solely because the Defendants have failed to provide sufficient housing and supportive services in more integrated settings.
331. After the initial Complaint in this action was filed on January 23, 2019, Defendants released some Plaintiffs to temporary settings, contrary to Defendants’ prior decision to hold Plaintiffs in prison until there was a bed available in community-based mental health housing determined appropriate for their needs.
332. On information and belief, Defendants completed a revised discharge plan for C.J. on January 30, 2019, completed a revised application for mental health housing and services for
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C.J. on February 7, 2019, and released C.J. to Middletown Transitional Residence on February 12, 2019 in part in response to this litigation.
333. On information and belief, Defendants completed a revised discharge plan for M.J. on January 30, 2019, completed a revised application for mental health housing and services for M.J. on February 13, 2019, and released M.J. to Middletown Transitional Residence on February 19, 2019 in part in response to this litigation.
334. On information and belief, Defendants released J.R. to the Rockland Psychiatric Center’s Alliance House on March 18, 2019 in part in response to this litigation.
335. On information and belief, Defendants released D.R. to the Pilgrim Crisis Residence on February 13, 2019 in part in response to this litigation.
336. Defendants discharged these Plaintiffs to settings that are located on the grounds of a psychiatric institution, are short-term, and/or are intended for a different patient population.
D. Plaintiffs Want to Receive Services in a More Integrated Setting. 337. Plaintiffs want to be free from prison. They want to live in a more integrated
setting, such as community-based mental health housing. 338. Plaintiffs demonstrated this desire by engaging in the housing application process,
by participating in video-teleconference interviews with local housing providers, and by repeatedly expressing to DOCCS and OMH staff their wishes to be discharged to community housing.
339. The desire for integrated housing has also led Plaintiffs to request other alternatives to institutionalization in prison.
340. Some Plaintiffs have proposed that they be released to family members. 341. Defendants have not released Plaintiffs to these environments.
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342. With proper supportive services in these environments, people with incarceration histories can be successful in the community. Supportive services include Forensic Assertive Community Treatment (“FACT”) and Assertive Community Treatment (“ACT”), which provide multidisciplinary team approaches that are responsive to individual needs.
343. Defendants have not, however, developed supportive services adequately to meet the needs of the mental health population. Only 12 FACT teams exist in the state. ACT teams exist in only 28 counties and operate at high capacity. As a result, people referred to FACT and ACT teams are placed on waiting lists for services.
E. Plaintiffs Can Be Reasonably Accommodated in Integrated Settings. 344. Defendants can reasonably accommodate Plaintiffs’ need to receive services in an
integrated community setting. 345. New York already has a continuum of residential services to integrate people with
serious mental illness who are being released from prison into the mainstream community. 346. Defendants have recognized the value of community-based mental health housing
as a critical initiative for this population. 347. However, existing programs and services have been developed and administered
in a manner and on a scale that are inadequate for Plaintiffs’ needs, resulting in unlawful, unconstitutional, and unnecessary institutionalization in state prisons.
348. Defendants could develop capacity in existing community-based mental health housing programs and support services without unreasonable costs.
349. Defendants could redirect available funds to provide services to people in integrated community settings and/or expand capacity in existing community-based housing programs and mental health support services.
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350. Redirection of funds used to incarcerate people to provide services in integrated community settings would achieve cost savings for the state. IV. Defendants Hold Members of the RTF Subclass in Punitive Prison Conditions Past
Their Maximum Expiration Dates. 351. Defendants have a policy and practice of placing individuals with serious mental illness in state prisons, and subjecting them to conditions that amount to punishment, after they have reached their maximum expiration dates. 352. Each member of the RTF Subclass is being held in state prison. 353. These RTF Subclass members are not held in pretrial detention, are not subject to post-release supervision revocation proceedings, and are not being held pursuant to applicable civil commitment laws. 354. Instead, Defendants use state prisons to house RTF Subclass members who have nominally been “released” to community supervision because there is inadequate housing that can meet their mental health needs in the community. 355. Defendants know that Plaintiffs’ sentences of imprisonment end on their maximum expiration dates, that those dates have passed, that Plaintiffs are homeless or at risk of homelessness, and that Plaintiffs require community-based mental health housing. 356. Further, Defendants know that Plaintiffs will remain in prison barring actions by Defendants. 357. When DOCCS determines that there are no appropriate mental health housing beds available at the expiration of RTF Subclass members’ sentences, DOCCS begins the administrative process of transferring these individuals to RTFs based in state prisons. 358. DOCCS staff have petitioned the Parole Board to impose RTF placement as a condition of their post-release supervision.
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359. Defendants Annucci or McGrath approve all transfers of individuals on RTF status to state prison.
360. On their maximum expiration dates, Defendants claim to discharge members of the RTF Subclass to community supervision but in fact continue to incarcerate them in a state prison.
361. In some cases, members of the RTF Subclass are “released” to the very same prison they lived in while serving their prison sentence to live under the same conditions and restrictions.
362. Members of the RTF Subclass are not, however, serving a sentence of imprisonment.
363. DOCCS policies classify RTF Subclass members as “releasees” on community supervision, notwithstanding their incarceration in state prison.
364. Some DOCCS records and staff also refer to RTF Subclass members as “parolees.”
365. Plaintiffs subject to a Parole Board-imposed condition of RTF placement (under Penal Law § 70.45) receive a memorandum known as Special Condition 37, which states that:
Pursuant to the authority conferred upon the New York State Board of Parole under Section 70.45(3) of the New York Penal Law to impose conditions of release upon an individual serving a determinate sentence who is to be released to serve a period of postrelease supervision, as a condition of your post-release supervision, you shall be transferred to, and participate in, the programs of a residential treatment facility, as that term is defined by Correction Law Section 2(6) for a period not exceeding six (6) months from the date of your release to post-release supervision. 366. While the Parole Board may impose RTF placement as a condition of release, the Board is not responsible for selecting the specific RTF—namely, a state prison—in which the releasee will be placed.
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367. Instead, Defendants Annucci and McGrath and DOCCS staff are wholly responsible for designating facilities to serve as RTFs, keeping these individuals in state prison while on RTF status, and subjecting them to punitive conditions.
368. Plaintiffs whose RTF confinement is not authorized under Penal Law § 70.45 and who are not subject to Special Condition 37 are placed on RTF status on the DOCCS Commissioner’s purported authority under Correction Law § 73.
369. Defendant Annucci has designated Defendant McGrath as the official responsible for placing individuals on post-release supervision in an RTF pursuant to Correction Law § 73.
370. DOCCS has claimed the authority to place people on RTF status in state prisons indefinitely.
371. Named Plaintiff D.R., who was assigned to RTF status under the Correction Law, for example, received a memorandum from Defendant McGrath explaining the indefinite nature of this placement:
Since an approved residence has not yet been identified, I am invoking my authority as Associate Commissioner of the New York State Department of Corrections & Community Supervision (DOCCS) under section 73(10) of the Correction Law. Pursuant to such authority, you will remain in a Residential Treatment Facility until such time as you have proposed and DOCCS has approved a suitable residence. 372. While Defendants employ euphemistic terms to describe RTF placements, the reality for RTF Subclass members is that they never left prison. 373. Defendants treat members of the RTF Subclass as inmates and subject them to punitive conditions just as if they were serving a prison sentence. 374. DOCCS does not use community-based “residential treatment facilities” to house Plaintiffs. 375. Further, there are no separate “RTF” units within state prisons that are used to house Plaintiffs and that meet the state law definition in Correction Law § 2.
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376. As of July 2018, all RTF Subclass members assigned to an RTF were held in either medium or maximum security facilities.
377. The majority of the RTF Subclass are incarcerated at Green Haven Correctional Facility (a maximum-security prison) and Fishkill Correctional Facility (a medium-security prison) because these facilities are used to incarcerate individuals with serious mental illness.
378. Plaintiffs suffer severe psychological and emotional harms as a result of their de facto incarceration while on RTF status in state prison.
379. After learning they will be held past their maximum expiration date for an indefinite period, members of the RTF Subclass have attempted suicide and expressed suicidal intentions, engaged in self-harm, experienced depression and hopelessness, and have suffered exacerbated symptoms of their mental illnesses.
380. RTF Subclass members have spent months or even more than one year in state prisons before being released to the community.
381. For example, Plaintiff C.J. spent over 16 months in state prison past his maximum expiration date.
382. Plaintiffs need not be incarcerated. Defendants employ other substantially less restrictive methods that would allow for Plaintiffs’ re-entry into the community and support Plaintiffs in integrated independent settings.
383. These methods include housing combined with supports and services, such as ACT, FACT, and mobile crisis services, which already exist but have not been adequately developed or administered by Defendants.
384. Defendants have placed members of the RTF Subclass in a limbo over which they have no control. At the end of their maximum sentence, these individuals are “released” to serve
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a period of community supervision in a state prison solely because they have a disability and require an approved OMH community-based housing placement and supports that do not exist.
CLASS ALLEGATIONS 385. Plaintiffs properly maintain this action as a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure on behalf of themselves and similarly situated individuals in a general class and subclass. 386. The General Class consists of all persons (1) housed or who will be housed in a state prison, (2) with serious mental illness, (3) whose open dates for parole release, approved conditional release dates, or maximum expiration dates have passed, (4) who are not subject to residency restrictions under the Sexual Assault Reform Act, and (5) who are appropriate for integrated, community-based housing programs. 387. Plaintiffs also maintain this action on behalf of a subclass comprising members of the General Class whom Defendants incarcerate past their maximum expiration date in “residential treatment facilities” pursuant to Penal Law § 70.45 or Correction Law § 73. Specifically, the RTF Subclass consists of all persons (1) housed or who will be housed in a state prison pursuant to Penal Law § 70.45 or Correction Law § 73, (2) who have serious mental illness, (3) whose maximum expiration dates have passed, (4) who are not subject to residency restrictions under the Sexual Assault Reform Act, and (5) who are appropriate for integrated, community-based housing programs. 388. The General Class and RTF Subclass are each sufficiently numerous such that joinder of all members is impracticable. Each year, thousands of individuals receiving mental health treatment are discharged from prison, with hundreds requiring community-based mental
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health housing upon release. On information and belief, there are over 20 members at any given time in the RTF Subclass.
389. The compositions of the General Class and RTF Subclass are necessarily fluid as Defendants discharge Plaintiffs from prison at their discretion and new Plaintiffs enter each class as their release dates pass.
390. Moreover, joinder is impracticable as members of the General Class and RTF Subclass are geographically diverse, placed in prisons across the state, and their incarceration, mental illness, and lack of financial resources make bringing individual suits nearly impossible.
391. Among other relief, Plaintiffs seek prospective injunctive relief on behalf of future, unknown General Class and RTF Subclass members, further making joinder impracticable.
392. Plaintiffs raise questions of fact and law that are common to each of the General Class and RTF Subclass.
393. Common questions raised as to the General Class include, but are not limited to: a. Whether Defendants institutionalize in prison individuals with serious mental illness to address their housing needs, rather than provide appropriate residential placements and services in more integrated community settings; b. Whether Defendants fail to provide, fund, and effectively utilize communitybased mental health housing programs and services so that persons with serious mental illness who have been approved for discharge from state prisons may be placed in more integrated community settings; c. Whether Defendants’ failure to provide programs, services, and supports in more integrated community settings violates the integration mandate of the Americans with Disabilities Act and the Rehabilitation Act; and d. Whether Plaintiffs are entitled to declaratory and injunctive relief to vindicate their statutory rights.
394. Common questions raised as to the RTF Subclass additionally include, but are not limited to:
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a. Whether Defendants have a policy or practice of housing individuals with serious mental illness past their maximum expiration dates;
b. Whether Defendants have a policy or practice of subjecting members of the RTF Subclass to punitive conditions in state prison;
c. Whether Defendants have a policy or practice of criminalizing RTF Subclass members’ status as individuals with serious mental illness who are homeless or at risk of homelessness by punishing them with prison confinement;
d. Whether Defendants’ actions and inaction violate the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution; and
e. Whether Plaintiffs are entitled to declaratory and injunctive relief to vindicate their constitutional rights.
395. The Named Plaintiffs’ claims are typical of the General Class and RTF Subclass. Their claims arise from the same policies and practices as the proposed class and subclass, respectively, and are based on the same legal theories.
396. The Named Plaintiffs are capable of fairly and adequately protecting the interests of the General Class and RTF Subclass. There are no conflicts that exist among the Named Plaintiffs and members of either class.
397. Plaintiffs are represented by attorneys employed by Disability Rights New York, the Prisoners’ Rights Project of The Legal Aid Society, and Paul, Weiss, Rifkind, Wharton and Garrison LLP. The undersigned counsel has ample experience in litigating complex litigation, including class actions and civil rights cases, in particular involving the rights of people with mental illness and incarcerated people.
398. Defendants have acted and refused to act on grounds generally applicable to the General Class and the RTF Subclass. Injunctive and declaratory relief is appropriate respecting the class and subclass as a whole.
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FIRST CAUSE OF ACTION (Americans with Disabilities Act by All Plaintiffs and the General Class against All
Defendants) 399. Title II of the ADA prohibits Defendants from discriminating against individuals with disabilities in programs and services. 42 U.S.C. § 12132. 400. Title II also requires that “[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). 401. Plaintiffs are individuals with serious mental illness. They have mental impairments that substantially limit one or more major life activity. 402. Plaintiffs are qualified individuals with disabilities within the meaning of 42 U.S.C. § 12131(2) and 28 C.F.R. § 35.104. 403. Plaintiffs are qualified to receive services in more integrated community-based settings that meet their mental health needs. 404. Serving Plaintiffs in the most integrated settings appropriate to their needs can be reasonably accommodated and would not fundamentally alter Defendants’ programs and services. 405. Defendants DOCCS and OMH are public entities covered by Title II of the ADA. 42 U.S.C. § 12131(1)(A) and (B). 406. Defendants Cuomo, Annucci, Sullivan, and McGrath are responsible for the operation of public entities covered by Title II of the ADA. 42 U.S.C. §§ 12131(1)(A) and (B). 407. Defendants are obligated under the ADA to administer state programs in a manner that enables Plaintiffs to receive services in the most integrated setting appropriate to their needs.
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408. Defendants have failed to meet this obligation. Defendants have caused Plaintiffs to be institutionalized and segregated in state prisons, rather than provide adequate residential placements in the most integrated setting appropriate to their needs.
409. Defendants’ actions and inactions constitute discrimination in violation of Title II of the ADA, 42 U.S.C. § 12132, and its implementing regulations, 28 C.F.R. Part 35.
SECOND CAUSE OF ACTION (Rehabilitation Act by All Plaintiffs and the General Class against All Defendants)
410. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, provides: No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be the denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .
411. Section 504 also requires that: For purposes of this part, aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for handicapped and nonhandicapped persons, but must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person’s needs.
45 C.F.R. § 84.4(b)(2). 412. Plaintiffs are individuals with serious mental illness. They have mental
impairments that substantially limit one or more major life activity. 413. Plaintiffs are qualified individuals with disabilities within the meaning of 29
U.S.C. § 705(20) and 45 C.F.R. § 84.3(1). 414. Plaintiffs are qualified to participate in and receive services in more integrated
settings appropriate to their needs. 415. Defendants can reasonably accommodate Plaintiffs in the most integrated settings
appropriate to their needs.
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416. Defendants DOCCS and OMH are programs and conduct activities which receive federal financial assistance.
417. Defendants Cuomo, Annucci, Sullivan, and McGrath are responsible for programs and activities receiving federal financial assistance.
418. Defendants are obligated under Section 504 to administer programs and services for individuals with mental illness that provide the opportunity to receive services in the most integrated setting appropriate to their needs.
419. Defendants have failed to meet this obligation. Defendants’ unlawful activities and omissions have caused Plaintiffs to receive programs and services in the institutionalized and segregated setting of state prisons, rather than the most integrated setting appropriate to their needs.
420. Defendants’ failure to administer services, programs, and activities in the most integrated setting appropriate to the needs of Plaintiffs constitutes discrimination in violation of Section 504.
THIRD CAUSE OF ACTION (42 U.S.C. § 1983: Substantive Due Process by Plaintiffs C.J., M.J., J.R., D.R. and
the RTF Subclass against Defendants Annucci, Sullivan, and McGrath) 421. The Fourteenth Amendment protects against government conduct that infringes on fundamental rights and liberties. U.S. Const. amend. XIV. 422. Members of the RTF Subclass have fundamental liberty interests protected by the Due Process Clause that include, but are not limited to, freedom from bodily restraint and release from prison upon serving the maximum term of their court-imposed prison sentence. 423. Defendants have a policy and practice that deprives members of the RTF Subclass of their fundamental liberty interests by incarcerating them in state prisons following their
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maximum expiration dates, without court order, and by subjecting them to punitive conditions of confinement.
424. Defendants are deliberately indifferent to Plaintiffs’ indefinite detention in punitive conditions past their maximum expiration date.
425. Defendants assign RTF Subclass members to state prison while on RTF status, and subject them to punishment, despite the fact that they know, or should know, that these individuals require mental health housing, that there is an inadequate capacity in communitybased mental health housing programs, that their maximum expiration dates have passed, and that the legal authority to hold them in punitive conditions has ended. This conduct is not narrowly tailored to serve any compelling state interest, nor is it reasonably and necessarily related to any legitimate penological interest.
426. Plaintiffs’ continued incarceration in punitive conditions shocks the contemporary conscience.
FOURTH CAUSE OF ACTION (42 U.S.C. § 1983: Eighth Amendment by Plaintiffs C.J., M.J., J.R., D.R. and the RTF
Subclass against Defendants Annucci, Sullivan, and McGrath) 427. The Eighth Amendment, as applied to states through the Fourteenth Amendment, prohibits the imposition of cruel and unusual punishment by incarcerating individuals past their prison sentence and by criminalizing their status. U.S. Const. amend. VIII. 428. Defendants have a policy and practice of confining members of the RTF Subclass in state prisons, in punitive conditions, for significant periods of time past their maximum expiration dates because of a lack of adequate housing in the community. 429. Defendants are deliberately indifferent to Plaintiffs’ indefinite detention in punitive conditions past their maximum expiration date.
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430. Plaintiffs’ prolonged incarceration results from Defendants’ policy and practice of assigning individuals with serious mental illness to state prison pursuant to Penal Law § 70.45 or Correction Law § 73 and, while in these prisons, subjecting them to the same punitive conditions as if they were serving a prison sentence.
431. Defendants know that members of the RTF Subclass remain in prison past their maximum expiration date due to a lack of mental health housing and that they are suffering unwarranted punishment. Defendants have failed to address this unconstitutional practice.
432. Defendants subject RTF Subclass members to cruel and unusual punishment by criminalizing their status as individuals with serious mental illness who are homeless or at risk of homelessness.
433. Defendants criminalize RTF Subclass members’ inability to secure the community-based mental health housing that Defendants impose as a precondition for release and which Defendants have not made available.
434. By imposing prison confinement solely because RTF Subclass members cannot satisfy a precondition for release that is involuntary and inseparable from their status, Defendants criminalize RTF subclass members’ status.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court:
a) Certify, pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure: i. A General Class defined as: All persons (1) housed or who will be housed in a state prison, (2) with serious mental illness, (3) whose open dates for parole release, approved conditional release dates, or maximum expiration dates have passed, (4) who are not subject to residency restrictions under the Sexual Assault Reform Act, and (5) who are appropriate for integrated, community-based housing programs; and
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ii. An RTF Subclass defined as: All persons (1) housed or who will be housed in a state prison pursuant to Penal Law § 70.45 or Correction Law § 73, (2) who have serious mental illness, (3) whose maximum expiration dates have passed, (4) who are not subject to residency restrictions under the Sexual Assault Reform Act, and (5) who are appropriate for integrated, community-based housing programs.
b) Appoint the undersigned as class counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure.
c) Pursuant to Rule 57 of the Federal Rules of Civil Procedure, enter an order declaring Defendants’ conduct as alleged herein unconstitutional and unlawful under the Eighth and/or Fourteenth Amendments to the U.S. Constitution, the Americans with Disabilities Act, and the Rehabilitation Act.
d) Enter a permanent injunction requiring Defendants to promptly take the following steps that are necessary to serve Plaintiffs in the most integrated setting appropriate to their needs:
i. Developing and implementing an effective plan for providing care and treatment in the most integrated setting appropriate to the needs of individuals with serious mental illness who are being discharged from state prison, who are qualified to receive mental health services in integrated settings, and who want mental health services in a more integrated setting; and
ii. Promptly making available sufficient community-based care and treatment opportunities, including OMH-funded mental health housing, to ensure that the most integrated appropriate care and treatment is provided without undue delay to those qualified individuals being discharged from state prison who want community-based care and treatment.
e) Enjoin Defendants Annucci, Sullivan, and McGrath from subjecting the RTF Subclass to punitive conditions in state prison.
f) Award reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, 42 U.S.C. § 12205, 29 U.S.C. § 794a, and other applicable law.
g) Order such other relief as the Court deems appropriate.
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Dated: June 3, 2019 New York, New York

DISABILITY RIGHTS NEW YORK
/s/ Elena Landriscina
Elena Landriscina (elena.landriscina@drny.org) Joshua Rosenthal (joshua.rosenthal@drny.org) Betsy Sterling (betsy.sterling@drny.org) 25 Chapel Street, Suite 1005 Brooklyn, New York 11201 (518) 432-7861
The LEGAL AID SOCIETY Janet E. Sabel, Attorney-in-Charge
/s/ Stefen R. Short
Stefen R. Short (sshort@legal-aid.org) Robert Quackenbush (rquackenbush@legal-aid.org) Veronica Vela (vvela@legal-aid.org) Mary Lynne Werlwas (mlwerlwas@legal-aid.org) Prisoners’ Rights Project 199 Water Street, 6th Floor New York, New York 10038 (212) 577-3530
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
/s/ Walter G. Ricciardi
Walter G. Ricciardi (wricciardi@paulweiss.com) Emily A. Vance (evance@paulweiss.com) 1285 Avenue of the Americas New York, New York 10019 (212) 373-3350
Attorneys for Plaintiffs
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------- x

M.G., P.C., C.J., M.J., J.R., D.R., S.D., W.P., and D.H., individually and on behalf of all similarly situated,
Plaintiffs,
-against-
ANDREW CUOMO, in his official capacity as the Governor of the State of New York, the NEW YORK STATE OFFICE OF MENTAL HEALTH, ANN MARIE T. SULLIVAN, in her official capacity as the Commissioner of the New York State Office of Mental Health, the NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, ANTHONY J. ANNUCCI, in his official capacity as the Acting Commissioner of the New York State Department of Corrections and Community Supervision, ANNE MARIE MCGRATH, in her official capacity as Deputy Commissioner of the New York State Department of Corrections and Community Supervision,

SECOND AMENDED CLASS ACTION COMPLAINT
7:19-cv-00639 (CS) (LMS)

Defendants. ----------------------------------------------------------------------- x
INTRODUCTION 1. Plaintiffs, individuals with serious mental illness who are indigent, bring this action to challenge Defendants’ failure to serve them in appropriate and integrated settings when they reach their lawful prison release dates. 2. Defendants hold Plaintiffs in prison past their lawful release dates or shuffle them through a revolving door of homeless shelters, state-operated institutions, and hospitals, and subject them to reincarceration, because Defendants fail to make available the necessary community-based mental health housing and supportive services for which Plaintiffs are eligible.

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3. For months or years after reaching their lawful release dates, Defendants leave Plaintiffs to languish in segregated settings, or place Plaintiffs at a serious risk of future institutionalization.
4. Defendants deprive Plaintiffs of opportunities to integrate into their communities by relying on segregated settings—including prisons and various forms of temporary housing— to deliver mental health services or by outright depriving Plaintiffs of the services they need to transition to the community successfully.
5. Plaintiffs bring this action on behalf of a class of people with serious mental illness whom Defendants hold or will hold in secure prisons past their release dates—including the end of their prison sentences, approved conditional release dates, and open dates for parole release—due to the inadequate capacity of community-based mental health housing programs (the “General Class”).
6. Plaintiffs also bring this action on behalf of a subclass of those General Class members who have been or will be incarcerated past the maximum expiration dates of their court-imposed prison sentences (the “RTF Subclass”).
7. While claiming to have released RTF Subclass members to Residential Treatment Facilities (“RTFs”), Defendants developed a practice of holding Plaintiffs in the same prison settings and under the same conditions as their court-imposed prison sentences.
8. In effect, Defendants’ practices administratively lengthen Plaintiffs’ terms of imprisonment, undermining the most basic principle undergirding the criminal justice system: that a criminal sentence, once imposed by a judge, means what it says.
9. While residing in prison pending a vacancy in a community-based mental health housing program, Plaintiffs are not free to come and go or participate in community life.
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10. While awaiting placement in mental health housing, Plaintiffs are locked in secure prison facilities, have no autonomy and no privacy, and continue to be treated as prisoners.
11. Plaintiffs, the General Class, and the RTF Subclass remain in state prison waiting for community-based mental health housing for months, and in some cases over two years.
12. While confining Plaintiffs, Defendants subject them to prison rules, impose solitary confinement, and may even revoke approved release status in response to reported violations of prison rules, without that person having ever stepped outside prison walls.
13. In addition, Plaintiffs bring this action on behalf of a class of people with serious mental illness whom Defendants unnecessarily segregate or place at serious risk of institutionalization upon their release from prison because Defendants fail to provide the community-based mental health housing and supportive services that Plaintiffs need (the “Discharge Class”).
14. Defendants determine that Discharge Class members require and are eligible for community-based mental health housing and supportive services.
15. Despite these determinations, Defendants rely on state-operated, segregated settings to deliver the necessary services, or on a patchwork of homeless shelters, hotels, motels, and shelter-like Department of Corrections and Community Supervision (“DOCCS”) parole housing facilities, all devoid of the essential services that support community living and prevent unnecessary hospitalization and reincarceration.
16. Like the General Class and RTF Subclass, Discharge Class members remain in limbo on lengthy waiting lists for community-based mental health housing and supportive services.
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17. In short, Defendants administer and fund their programs in a manner that relies on prisons, jails, state-run facilities, halfway houses, and the homeless shelter system to warehouse Plaintiffs rather than provide the community-based mental health housing and supportive services proven to be critical for successful reintegration into the community.
18. Defendants need not isolate Plaintiffs in prisons or other segregated settings or expose Plaintiffs to a serious risk of institutionalization. Defendants have developed a continuum of mental health housing and supportive services models and can make available within the existing mental health services system the integrated community-based mental health housing and supportive services appropriate for Plaintiffs’ needs.
19. Plaintiffs bring this action on behalf of the General Class and Discharge Class under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C § 794 (“Section 504”), to remedy Defendants’ failure to provide services to Plaintiffs in the most integrated setting and Defendants’ actions that place Plaintiffs at risk of institutionalization.
20. On behalf of the RTF Subclass, Plaintiffs also bring this action under 42 U.S.C. § 1983 for violations of the Eighth and Fourteenth Amendments to the U.S. Constitution, to remedy the deprivation of RTF Subclass members’ fundamental liberty interests and their rights not to be subject to prolonged incarceration or criminalization of their status as individuals with mental illness who are homeless or at risk of homelessness.
21. Plaintiffs seek declaratory and injunctive relief for the unconstitutional and discriminatory practices to which they are subject.
22. For members of the General Class and RTF Subclass, Plaintiffs do not seek an order requiring their release from prison. Rather, Plaintiffs ask that Defendants make release
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possible by developing the community-based mental health housing programs that Defendants have imposed as a precondition for Plaintiffs’ discharge from prison, and by creating an effective plan for community integration.
23. For RTF Subclass members, Plaintiffs seek an end to the punitive conditions of their confinement while they await release to their communities.
24. For the Discharge Class, Plaintiffs ask that Defendants make available sufficient community-based mental health housing and supportive services necessary to reside and remain in the community, rather than release Discharge Class members to segregated settings or other settings where the lack of mental health services places them at a serious risk of institutionalization.
JURISDICTION AND VENUE 25. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343. 26. Declaratory and injunctive relief are sought under 28 U.S.C. §§ 1343, 2201, and 2202. 27. Venue is laid within the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to the claims occurred within this district.
THE PARTIES I. The General Class Representatives
A. M.G. 28. Plaintiff M.G. is a 57-year-old man, whom Defendants incarcerated for 769 days
past his open date for parole release.
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29. M.G. has a diagnosis of borderline personality disorder. 30. He has also struggled with depression and engaged in self-harm, particularly after the deaths of his daughter, father, and mother. 31. The New York State Office of Mental Health (“OMH”) determined M.G. to be an individual with serious mental illness. 32. Prior to his release, M.G. was incarcerated at Auburn Correctional Facility, a maximum-security prison in Auburn, New York. 33. He was housed in a windowless cell in the Intermediate Care Program (“ICP”) at Auburn, which is a general population program exclusively for people with serious mental illness who require additional mental health support to avoid decompensation and poor outcomes within the prison environment. 34. The New York Parole Board granted him an open date for parole release of May 10, 2017. 35. M.G. was approved for release to Dutchess County. 36. OMH determined that M.G. would be homeless or at risk of homelessness once released from prison. 37. OMH assessed M.G. as requiring and being appropriate for community-based mental health housing. 38. Anticipating his own needs, M.G. had requested that he receive counseling and mental health housing upon his release from prison when meeting with his OMH discharge planner and the Parole Board. 39. M.G.’s OMH discharge planner submitted applications for mental health housing in Dutchess County.
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40. Upon reaching his open date for parole release, prison staff informed M.G. that he would not be timely released due to a determination that he can be released only to communitybased mental health housing.
41. M.G. remained on a waiting list for a bed after being informed that there are no available beds in the community-based mental health housing that he requires.
42. M.G. remained at a correctional facility solely because he required communitybased mental health housing and supports that Defendants had not made available.
43. M.G.’s mental health deteriorated as a result of his continued incarceration at Auburn.
44. The stress of his continued stay and uncertainty as to duration also disrupted his sleep and caused him to have seizures.
45. His prolonged institutionalization also strained his marriage. When he was not released on his approved date, M.G.’s wife assumed incorrectly that it was due to some infraction or wrongdoing. M.G. and his wife have since divorced.
46. After the filing of the original Complaint in this action, OMH determined that, with respect to mental health housing for M.G., “there is no vacancy in sight with no estimated timeframe.”
47. In or around April 2019, OMH staff at Auburn informed M.G. that OMH was considering releasing him to a crisis residence, a form of short-term housing that is not community-based housing.
48. In the spring of 2019, M.G. was informed that the “head of OMH” had contacted Dutchess County to arrange for his release.
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49. In early June 2019, DOCCS located a bed in a halfway house called Hillcrest House, and approved M.G.’s release from prison.
50. On or about June 14, 2019, M.G. was informed for the first time that he would be released the following week.
51. Defendants released M.G. to Hillcrest House on June 18, 2019. 52. M.G. was told that he could remain at Hillcrest House for four months. 53. Hillcrest House is not the community-based mental health housing for which OMH determined M.G. eligible and appropriate. 54. Hillcrest House is a halfway house, also known as DOCCS parole housing, funded through DOCCS’ Community Based Residential Program. 55. Hillcrest House houses up to 60 people. 56. Hillcrest House is a single facility that contains a homeless shelter on one end of the building and transitional rooms, including those devoted to DOCCS parole housing, on the other. 57. Hillcrest House provides only temporary housing and has no on-site medical or mental health care staff. 58. DOCCS had previously determined that Hillcrest House was an inappropriate housing location for formerly incarcerated people who require mental health housing. 59. After decades of incarceration and years of participating in a residential mental health program in prison, M.G. had no mental health counselor on site to assist him with his transition to the community.
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60. Upon his arrival at Hillcrest House, M.G. learned that OMH had failed to arrange for his Supplemental Security Income and Medicaid benefits despite an earlier representation that it would do so.
61. While at Hillcrest House, M.G. was subjected to institutional conditions. He was subject to security monitoring, shared a hall bathroom, did not have access to a kitchen, and ate his meals in a shared dining room.
62. M.G. was incarcerated at Auburn past his open date for parole release as of January 23, 2019, the date that the original Complaint in this action was filed.
63. M.G. could not predict the length of his prolonged incarceration. 64. After the filing of the original Complaint, the timing of M.G.’s discharge was within Defendants’ discretion. 65. M.G. desires to reside and receive programs and services in community-based mental health housing. B. P.C. 66. Plaintiff P.C. is a 50-year-old Black man, whom Defendants held in state prison for 861 days past his open date for parole release. 67. P.C. has a diagnosis of schizophrenia. 68. He has also been diagnosed with a mild intellectual disability. 69. OMH determined P.C. to be an individual with serious mental illness. 70. Prior to his release, P.C. was incarcerated at Sullivan Correctional Facility, a maximum-security prison in Fallsburg, New York. 71. He was housed in the Special Needs Unit (“SNU”) at Sullivan.
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72. The SNU is designated exclusively for incarcerated individuals with developmental or intellectual disabilities and adaptive behavior deficits. The SNU houses many people who are additionally diagnosed with serious mental illness.
73. The New York Parole Board granted P.C. an open date for parole release of December 19, 2017.
74. P.C. was approved for release to Nassau County. 75. OMH determined that P.C. would be homeless or at risk of homelessness once released from prison. 76. OMH assessed P.C. as requiring and appropriate for community-based mental health housing upon his discharge. 77. OMH staff submitted mental health housing applications on P.C.’s behalf to Nassau County. 78. Subsequently, OMH staff informed P.C. that they would seek housing for him in Suffolk County instead, since no beds were available in Nassau. 79. Prison staff informed P.C. that he would not be released on his open date for parole release because appropriate community-based mental health housing was unavailable. 80. P.C. remained at a correctional facility solely because he required communitybased mental health housing and supports that Defendants had not made available. 81. After the filing of the original Complaint, OMH staff at Sullivan told P.C. that “Albany” had recently taken over planning for his release from the facility’s discharge planner. 82. On or about April 27, 2020, the Sullivan discharge planner informed P.C. for the first time that he would be released from prison.
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83. On April 28, 2020, Defendants released P.C. to a state-operated community residence (“SOCR”) facility in West Brentwood, New York, in Suffolk County.
84. P.C. did not learn to where he would be discharged, or the type of housing in which he would live, until he was being driven from prison to the SOCR.
85. The SOCR facility is operated by OMH and is on the campus of the Pilgrim Psychiatric Center. The facility consists of large, older buildings that house approximately 10 people on each floor and in which meals are served and residents congregate in common areas, medication is administered on site, and residents share bathrooms. In the building in which P.C. was placed, there is a computer lab but it does not have any computers.
86. P.C. did not hear from his case manager or know the agency providing case management for more than a week after his discharge, despite being told that his case manager would be responsible for securing permanent housing and benefits for him.
87. P.C. was incarcerated at Sullivan past his open date for parole release as of January 23, 2019, the date that the original Complaint in this action was filed.
88. P.C. could not predict the length of his prolonged incarceration. 89. After the filing of the original Complaint, the timing of P.C.’s discharge was within Defendants’ discretion. 90. P.C. desires to reside and receive programs and services in community-based mental health housing.
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II. Representatives of Both the General Class and the RTF Subclass A. C.J. 91. Plaintiff C.J. is a 33-year-old Black man, whom Defendants held in state prison
for 502 days past his maximum expiration date, a date that marks the end of his court-imposed prison sentence.
92. C.J. has a diagnosis of bipolar II disorder. 93. OMH determined C.J. to be an individual with serious mental illness. 94. C.J.’s maximum expiration date was September 28, 2017, as calculated by DOCCS. 95. DOCCS claims to have released C.J. on his maximum expiration date to a “residential treatment facility,” first at Fishkill Correctional Facility and then at Green Haven Correctional Facility. 96. In fact, C.J. was housed in prison units designated exclusively for incarcerated people with serious mental illness. 97. C.J. has been sentenced to five years of post-release supervision in the community. 98. Prior to C.J.’s release date, DOCCS placed him in Sing Sing Correctional Facility’s Community Orientation and Re-entry Program (“CORP”), a program for people with serious mental illness who are nearing release from prison. 99. CORP is designed to prepare people with serious mental illness for community integration and a component of the program is focused on securing housing.
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100. On July 21, 2017, C.J.’s OMH discharge planner completed a discharge summary for C.J., which noted that C.J. would be homeless and would require community-based mental health housing and supports upon release from prison.
101. On August 1, 2017, C.J.’s OMH discharge planner submitted an application for community-based mental health housing and services in Orange County on C.J.’s behalf.
102. Specifically, the application identified both a supportive treatment apartment and individual supported housing as appropriate for C.J. Both models of housing allow residents to live in integrated community settings.
103. While enrolled in CORP, C.J.’s OMH counselor informed C.J. that he would not be released at the end of his prison sentence and would be held past his maximum expiration date.
104. In September 2017, C.J. was directed to sign papers related to “residential treatment facility” status.
105. C.J. was transferred to Fishkill Correctional Facility following the end of his prison sentence and placed in the prison’s ICP and Transitional Intermediate Care Program (“TrICP”).
106. Subsequently, DOCCS transferred C.J. to Green Haven Correctional Facility and placed him in single cells in the prison’s TrICP and ICP.
107. Despite his nominal “release” status, C.J. was housed in prison and subject to prison conditions for the entirety of time following his maximum expiration date until his release.
108. C.J. remained at correctional facilities solely because he required communitybased mental health housing and supports that Defendants had not made available.
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109. OMH staff told C.J. that there were few resources in the community for him and he needed to be patient.
110. C.J. earned a GED and vocational certificate in prison and planned to search for a job upon release. Due to his delayed release, he was unable to act on those plans.
111. C.J. experienced serious psychiatric harm due to his prolonged incarceration. C.J. repeatedly engaged in self-harm and expressed his desire to die rather than remain in prison.
112. C.J. was admitted to a crisis observation cell and was repeatedly placed on suicide watch, including when his birthday approached and he informed prison staff that he had lost hope of going home.
113. C.J. wanted to return to Orange County, where his family and support system reside.
114. As a result of his prolonged incarceration, his family relationship suffered. C.J. was due to be released shortly before his young daughter’s birthday, and he expected to celebrate with her for the first time in a decade. Since his release date was in early fall, he also planned to spend the holidays with family.
115. On January 30, 2019, seven days after Plaintiffs filed this action, OMH staff at Green Haven completed a revised discharge plan for C.J. Under this plan, C.J.’s proposed release address was changed to the Middletown Transitional Residence in Middletown, New York.
116. The Middletown Transitional Residence is operated by OMH, and is located on the campus of the Rockland Psychiatric Center – Middletown Campus. It is intended to be temporary housing and is not the community-based mental health housing identified as appropriate for C.J.
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117. On February 7, 2019, C.J.’s OMH pre-release coordinator at Green Haven completed a revised application for mental health housing and services in Orange County. Though C.J. was still held at Green Haven at that time, the application listed his address as the Middletown Transitional Residence.
118. Like the 2017 application, the February 2019 application identified individual supported housing as appropriate for C.J. This model of housing allows residents to live independently in integrated settings in the community.
119. Parole staff approved C.J.’s discharge to the Middletown Transitional Residence on February 8, 2019.
120. On or about February 11, 2019, an OMH discharge planner called C.J. to her office. At this meeting, the discharge planner informed C.J. that she had received an urgent email from “Albany” and directed C.J. to complete his discharge paperwork.
121. On February 12, 2019, C.J. was released to the Middletown Transitional Residence.
122. C.J. was incarcerated at Green Haven past his maximum expiration date on residential treatment facility status as of January 23, 2019, the date that the original Complaint in this action was filed.
123. C.J. could not predict the length of his prolonged incarceration. 124. After the filing of the original Complaint, the timing of C.J.’s discharge was within Defendants’ discretion. 125. C.J. has not received the community-based housing that OMH identified as appropriate for him.
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126. C.J. desires to reside and receive programs and services in community-based mental health housing.
B. M.J. 127. Plaintiff M.J. is a 34-year-old Black man, whom Defendants held in state prison
for 246 days past his maximum expiration date. 128. M.J. has a diagnosis of bipolar disorder. 129. OMH determined M.J. to be an individual with serious mental illness. 130. M.J.’s maximum expiration date—signaling the end of his court-imposed prison
sentence—was June 18, 2018, as calculated by DOCCS. 131. DOCCS claims to have released him on his maximum expiration date to a
“residential treatment facility,” first at Fishkill Correctional Facility and then at Green Haven Correctional Facility.
132. In fact, M.J. was housed in prison units designated exclusively for incarcerated people with serious mental illness.
133. M.J. has been sentenced to five years of post-release supervision in the community.
134. Prior to June 18, 2018, M.J. was housed in Great Meadow Correctional Facility’s ICP.
135. At Great Meadow, M.J. met with an OMH discharge planner assigned to the ICP and completed government benefits applications.
136. M.J.’s OMH discharge planner confirmed that M.J. will be homeless or at risk of homelessness once released from prison, and requires and is appropriate for community-based mental health housing.
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137. In April 2018, M.J.’s OMH discharge planner submitted an application for community-based mental health housing and services in Orange County on M.J.’s behalf.
138. The application identified a supervised community residence as appropriate for M.J. This model of mental-health housing provides on-site services and supervision for residents, typically in private living units. The application also requested that M.J. receive specialized services known as Assertive Community Treatment (“ACT”), which is a mobile multidisciplinary team of mental health professionals providing support 24 hours per day.
139. Instead of releasing M.J. on his maximum expiration date, DOCCS informed M.J. that he would be admitted to a “residential treatment facility,” and DOCCS directed M.J. to sign papers related to residential treatment facility status.
140. M.J. was transferred to the Fishkill Correctional Facility’s ICP on or about the maximum expiration date of his prison sentence.
141. Subsequently, DOCCS transferred M.J. to the Green Haven Correctional Facility’s ICP.
142. Despite his nominal “release” status, M.J. was housed in prison and subject to prison conditions for the entirety of time following his maximum expiration date until his release.
143. M.J. was informed that limited community-based mental health housing in Newburgh contributed to the delay of his release to Orange County.
144. M.J. remained at correctional facilities solely because he required communitybased mental health housing and supports that Defendants had not made available.
145. Even though segregated confinement is known to be harmful to people with serious mental illness, Defendants placed M.J. in punitive segregated confinement twice while
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on “residential treatment facility” status, placing M.J. at risk of harm from psychiatric decompensation.
146. M.J. wanted to return to Orange County, where he grew up and where his family support system resides.
147. On January 30, 2019, seven days after Plaintiffs filed this action, OMH staff at Green Haven completed a revised discharge plan for M.J. Under this plan, M.J.’s proposed release address was changed to the Middletown Transitional Residence in Middletown, New York.
148. On February 13, 2019, M.J.’s OMH discharge planner at Green Haven completed a revised application for mental health housing and services in Orange County. Though M.J. was still held at Green Haven at that time, the application listed his address as the Middletown Transitional Residence.
149. The application identified individual supported housing as appropriate for M.J. This model of mental-health housing allows residents to live independently in integrated settings in the community. Unlike the prior application, the February 2019 application did not request ACT services for M.J.
150. On February 19, 2019, M.J. was released to the Middletown Transitional Residence, one week after Plaintiff C.J. was released to this same location.
151. M.J. was incarcerated at Green Haven past his maximum expiration date on residential treatment facility status as of January 23, 2019, the date that the original Complaint in this action was filed.
152. M.J. could not predict the length of his prolonged incarceration.
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153. After the filing of the original Complaint, the timing of M.J.’s discharge was within Defendants’ discretion.
154. M.J. has not received the community-based housing that OMH identified as appropriate for him.
155. M.J. desires to reside and receive programs and services in community-based mental health housing.
C. J.R. 156. Plaintiff J.R. is a 36-year-old Hispanic man, whom Defendants held in state
prison for 284 days past his maximum expiration date. 157. J.R. has diagnoses of depressive disorder and post-traumatic stress disorder. 158. OMH determined J.R. to be an individual with serious mental illness. 159. J.R. has attempted self-harm on multiple occasions. 160. J.R.’s maximum expiration date—signaling the end of his court-imposed prison
sentence—was June 7, 2018, as calculated by DOCCS. 161. He has been sentenced to three years of post-release supervision in the
community. 162. DOCCS claims to have released him on his maximum expiration date to the
nominal “residential treatment facility” at Fishkill. 163. In fact, J.R. was housed with individuals serving a sentence of imprisonment at
the prison. 164. J.R. received an approved conditional release date of November 9, 2017. 165. On his conditional release date, J.R.’s prison counselor informed him that he
would not be released on that day.
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166. Months before the expiration of J.R.’s prison sentence, J.R.’s OMH discharge planner submitted an application on J.R.’s behalf for community-based mental health housing and services in Dutchess County, where J.R. lived before his incarceration.
167. DOCCS issued a memorandum on or about June 4, 2018 advising J.R. that, pursuant to a condition established by the Parole Board, he would be transferred to a “residential treatment facility” upon the expiration of his sentence for a period not to exceed six months.
168. On June 7, 2018, the maximum expiration date of J.R.’s prison sentence, he was not released from prison.
169. J.R.’s counselor informed him that he would not be released because he has serious mental illness and requires community-based mental health housing, which neither DOCCS nor OMH had secured for him.
170. J.R.’s counselor also directed J.R. to sign documents that were presented to him as “release papers.”
171. His counselor informed J.R. that DOCCS no longer considered him an “inmate,” but rather a “parolee.”
172. DOCCS continued to hold J.R. in the same housing unit, under the same conditions, where he had been incarcerated up to that time.
173. Despite his nominal “release” status, J.R. was housed in prison and subject to prison conditions for the entirety of time following his maximum expiration date until his release.
174. During this time, J.R. proposed the addresses of several family members, including his sister and cousin, as residences to which he could be released. DOCCS did not approve these residences as suitable for his release.
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175. J.R. participated in several interviews with providers of community-based mental health housing.
176. Several providers could not admit J.R. to their program because they lack available beds.
177. J.R. remained at a correctional facility solely because he required communitybased mental health housing and supports that Defendants had not made available.
178. On March 18, 2019, J.R. was released to the Rockland Psychiatric Center’s Alliance House in Poughkeepsie, New York.
179. Alliance House is not the community-based housing that OMH identified as appropriate for him.
180. In fact, Alliance House is a crisis residence operated by OMH, which offers shortterm housing for up to 21 days. According to the state’s website, the crisis residence is “not intended as a substitute for housing.”
181. J.R. was incarcerated at Fishkill past his maximum expiration date on residential treatment facility status as of January 23, 2019, the date that the original Complaint in this action was filed.
182. J.R. could not predict the length of his prolonged incarceration. 183. After the filing of the original Complaint, the timing of J.R.’s discharge was within Defendants’ discretion. 184. J.R. desires to reside and receive programs and services in community-based mental health housing.
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D. D.R. 185. Plaintiff D.R. is a 37-year-old Black man, whom Defendants held in state prison
for 411 days past his maximum expiration date. 186. D.R. has a diagnosis of bipolar disorder. 187. OMH determined D.R. to be an individual with serious mental illness. 188. D.R.’s maximum expiration date—signaling the end of his court-imposed prison
sentence—was December 29, 2017, as calculated by DOCCS. 189. He has been sentenced to post-release supervision in the community to last until
March 4, 2021. 190. DOCCS claims to have released D.R. on his maximum expiration date to the
“residential treatment facility” at Fishkill Correctional Facility. 191. In fact, D.R. was housed in a dormitory at the prison, primarily with people who
have been convicted of sex offenses despite the fact that D.R. does not have any convictions for sex offenses.
192. In late December 2017, while D.R. was still confined at Mid-State Correctional Facility, DOCCS and OMH staff presented D.R. with “release papers” and directed D.R. to sign them.
193. On or about December 29, 2017, D.R.’s counselor informed him that he would be transferred to Fishkill.
194. OMH staff also informed D.R. that he would not be released to the community upon the expiration of his prison sentence.
195. D.R. received a memorandum dated May 29, 2018 from Defendant McGrath, noting that he would continue to be placed in a “residential treatment facility” because “an
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approved residence [for his release] has not yet been identified.” This memorandum explained that he would remain at the residential treatment facility “until such time as you have proposed and DOCCS has approved a suitable residence.”
196. D.R. continued to be incarcerated in prison and subject to prison conditions at Fishkill after receiving this memorandum.
197. Both before and after the maximum expiration date of his prison sentence, D.R. met with discharge planners to discuss his history of homelessness and need for communitybased mental health housing and supportive services, such as case management.
198. D.R.’s discharge planner submitted an application for community-based mental health housing and services on D.R.’s behalf to Nassau County.
199. D.R. participated in multiple interviews with providers of community-based mental health housing.
200. Despite his nominal “release” status, D.R. was housed in prison and subject to prison conditions for the entirety of time following his maximum expiration date until his release.
201. During this time, D.R. was placed in segregated confinement at the prison as punishment for disciplinary infractions, even after the expiration of his prison sentence.
202. D.R. proposed that he be released to his aunt’s home. This address was not approved as suitable for his release.
203. D.R. remained at a correctional facility solely because he required communitybased mental health housing and supports that Defendants had not made available.
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204. D.R.’s mental health significantly deteriorated as a result of his prolonged incarceration. He also experienced periods of frustration and sadness regarding his prolonged incarceration.
205. D.R.’s OMH counselor indicated that he was exhibiting symptoms of “paranoia.” 206. D.R. expected that after he was released at the end of his prison sentence, he would study to take a GED exam and find employment. 207. D.R. also expected that after he was released at the end of his prison sentence, he would spend time with his family, particularly during holidays. 208. On February 13, 2019, D.R. was released to the Pilgrim Crisis Residence in Brentwood, New York. 209. Pilgrim Crisis Residence is not the community-based housing that OMH identified as appropriate for him. 210. In fact, Pilgrim Crisis Residence is short-term housing located on the grounds of Pilgrim Psychiatric Center, which is a state psychiatric hospital. According to the state’s website, the crisis residence is “not intended as a substitute for housing.” 211. On information and belief, Pilgrim Crisis Residence is intended to serve patients ready for discharge from the psychiatric hospital. 212. D.R. was incarcerated at Fishkill past his maximum expiration date on residential treatment facility status as of January 23, 2019, the date that the original Complaint in this action was filed. 213. D.R. could not predict the length of his prolonged incarceration. 214. After the filing of the original Complaint, the timing of D.R.’s discharge was within Defendants’ discretion.
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215. D.R. desires to reside and receive programs and services in community-based mental health housing. III. Representatives of the Discharge Class
A. S.D. 216. S.D. is a 47-year-old Black man who was released from state prison on May 17,
2019, his approved conditional release date. He will be on post-release supervision until May 17, 2024.
217. S.D. has a diagnosis of schizophrenia. 218. When S.D. was incarcerated, OMH determined him to be an individual with serious mental illness. 219. In prison, OMH designated S.D. a mental health service level of 1-S, which denotes the highest level of mental health need in the state prison system. 220. S.D. has long been prescribed mental health medications, including antipsychotics. Upon his release from prison, he was prescribed Haldol and Seroquel, as well as Benadryl. 221. S.D. experienced multiple mental health crises while he was incarcerated. During a four-year period, he was on four separate occasions placed on crisis observation—a status involving observation and monitoring of patients who are psychiatrically unstable. On two of those occasions, OMH continued crisis observation status for periods of 20 and 21 consecutive days. 222. During his incarceration, OMH determined that S.D.’s mental health needs rendered him unsuitable for a general prison population placement.
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223. S.D. was instead housed in units designated exclusively for incarcerated individuals with serious mental illness, including the ICP.
224. Immediately prior to his release, S.D. was housed in the ICP at Auburn Correctional Facility.
225. Prior to his release from Auburn, OMH determined S.D. eligible and appropriate for community-based mental health housing and supportive services. These services would be necessary to ensure that S.D. successfully re-entered the community and remained in the community, and to prevent his deterioration and potential institutionalization.
226. OMH determined that S.D.’s necessary supportive services upon release included case management, ACT, and extensive psychiatric and therapy services.
227. OMH completed a housing referral for S.D. that recommended mental health housing if it was available.
228. OMH submitted an application for housing in an integrated setting on or about March 7, 2019, by transmitting the application to New York City’s Re-entry Coordination System.
229. On March 20, 2019, OMH also applied for his placement at a Transitional Living Residence or Transitional Placement Program.
230. OMH submitted care coordination referrals on May 8 and May 10, 2019. 231. Prior to his release from Auburn, S.D. had a video-teleconference interview with Promesa, a New York City-based provider of community-based mental health housing. 232. Promesa accepted S.D. into their apartment treatment program and added S.D. to a waiting list for placement into the program.
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233. Notwithstanding this acceptance, S.D. did not receive housing on his conditional release date.
234. On May 17, 2019, S.D. was discharged to the 30th Street Men’s Shelter, which is a homeless shelter in Manhattan that functions as an intake center for people who are entering the shelter system. DOCCS approved this housing placement.
235. Defendants decided to release S.D. to a homeless shelter notwithstanding OMH’s prior determination that he could not function in a general prison population.
236. DOCCS did not provide S.D. with his Social Security card when he was released. S.D.’s benefits were inactive and S.D. needed to rely on loved ones to assist him in the immediate period after release.
237. S.D. was transferred to NAICA East Tremont Transitional Housing Program (“East Tremont”).
238. East Tremont is a mental health shelter in the Bronx, New York. The shelter houses up to 154 men with mental illness. It is located in a predominantly Black and Latinx neighborhood that has suffered from decades of governmental disinvestment and neglect.
239. After years of incarceration, the experience of homelessness was very difficult for S.D.
240. Shelter conditions were “horrible” and caused S.D. extreme stress. 241. S.D. feared conflict and altercations with other residents at East Tremont. A resident stole the linens that were provided to S.D. 242. Residents at East Tremont are housed in a group setting. 243. S.D. shared a room with six people, was subject to a nightly curfew, and was expected each night to sign up for his bed.
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244. East Tremont provided neither the services that S.D. would receive in an integrated, community-based mental health housing program, nor the opportunities to forge ties to non-disabled persons in the community.
245. S.D. was not offered any rehabilitative programs at the shelter. 246. S.D. did not receive appropriate care for his needs at the shelter, such as activities of daily living (“ADL”) support, supervision with medications, and monitoring symptoms. 247. East Tremont staff secure residents’ medications in a locker in the reception area and dispense the medication to residents. 248. Residents are required to go to the reception area to obtain their medications. 249. While at East Tremont, S.D. did not have a sufficient supply of mental health medications to bridge him until the next available appointment with his doctor. 250. Shelter staff did not detect the insufficient medications or provide adequate support to S.D. to assist him with obtaining needed medications. These supportive services would have been available in integrated, community-based mental health housing. 251. Because S.D. did not have enough medications, S.D. began to ration his medications and missed doses for multiple medications. 252. After missing the doses of his mental health medications, S.D.’s mental health deteriorated and he became very sick. 253. S.D. experienced stomach upset, confusion, dizziness, and increased anxiety. 254. When S.D. spoke to his godmother by phone, S.D.’s godmother observed that S.D. sounded unwell and believed that S.D.’s mental health was deteriorating.
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255. Concerned about S.D.’s deteriorating condition, S.D.’s godmother encouraged S.D. to obtain emergency assistance from his Forensic ACT team, which is an ACT team serving people who have been involved in the criminal justice system.
256. On June 12, 2019, S.D.’s Forensic ACT team brought S.D. to the emergency room of NYC Health + Hospitals/Harlem, where he was admitted for psychiatric treatment to address severe symptoms, including auditory hallucinations and suicidal ideation.
257. On September 9, 2019, NYC Health + Hospitals/Harlem transferred S.D. to Manhattan Psychiatric Center for voluntary inpatient treatment.
258. Following his inpatient admission, S.D. described to hospital staff his depression resulting from the discomfort and fright of experiencing auditory hallucinations. He relayed that he felt depressed due to the hospitalization and the inability to live independently and described not having adequate support following his release from prison in May.
259. Hospital staff found that S.D. was decompensated at his admission to Manhattan Psychiatric Center.
260. They noted S.D.’s long period of incarceration, that he was deeply institutionalized, and that after his prison discharge, S.D. had minimal support living in the shelter system and was unable to manage his care needs, maintain his medication regimen or refill his medications. Hospital staff noted that as a result of not maintaining his treatment and the pressures of his psychiatric needs and the social environment, S.D. decompensated and was hospitalized shortly after his release from prison.
261. Nursing staff further noted S.D.’s difficulties maintaining his health related to his extended incarceration, residence in a shelter, and minimal living support, and led to medication non-compliance and hospitalization.
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262. S.D.’s hospitalization requires S.D. to re-apply for community-based mental health housing and supportive services.
263. OMH’s failure to provide appropriate community-based mental health housing and supportive services caused S.D.’s deterioration and unnecessary segregation and has delayed S.D. from re-integrating into his community.
264. OMH’s continued failure to provide community-based mental health housing and supportive services places S.D. at risk of further unnecessary segregation.
265. Hospital staff have determined that Level II supportive housing is appropriate for S.D. to assist with medication monitoring.
266. In July 2020, S.D. deteriorated while receiving inpatient care at Manhattan Psychiatric Center.
267. Due to S.D.’s deterioration, OMH staff placed S.D. on a one-to-one watch for multiple days.
268. OMH initiated procedures to retain S.D. for “continued hospitalization pursuant to Mental Hygiene Law Section 9.27” for a limited period of approximately two months, in the event S.D. was released during a criminal proceeding.
269. A few days later, however, police arrested S.D for allegedly injuring another patient at Manhattan Psychiatric Center, and S.D. was remanded to jail on July 25, 2020.
270. On information and belief, due to severe decompensation while at the jail, S.D. was not arraigned and, instead, was referred for a fitness examination pursuant to New York Criminal Procedure Law § 730. S.D. is currently at Bellevue Hospital.
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271. Despite his pretrial detention, S.D. remains eligible and appropriate for community-based mental health housing and supportive services. For example, S.D. continues to receive ACT services.
272. When S.D.’s pending criminal proceeding is resolved, S.D. will remain eligible for release to a community-based placement.
273. The ongoing inadequacy of appropriate community-based services continues to place S.D. at serious risk of institutionalization.
274. S.D. is currently harmed by inadequate community-based mental health housing and services. Pursuant to OMH’s guidelines, the lack of “stable housing and/or other community supports” negatively impacts S.D.’s opportunity to receive competency restoration services in the community. Due to Defendants’ failure to provide adequate community-based mental health housing and services, S.D. is likely to be placed in an institution for any necessary competency restoration.
275. The availability of sufficient community-based care and treatment opportunities would have reduced the serious risk of S.D.’s institutionalization at the time of his release from state prison in May 2019 and thereafter.
276. S.D. wishes to complete his college education. 277. S.D. desires integrated community-based mental health housing and supportive services. B. W.P. 278. Plaintiff W.P. is a 50-year-old Black man who was released from state prison on May 17, 2019, his approved conditional release date. He will be on post-release supervision until May 17, 2024.
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279. W.P. has a diagnosis of schizoaffective disorder, bipolar type. 280. He has also been diagnosed with anti-social personality disorder. 281. When W.P. was incarcerated, OMH determined him to be an individual with serious mental illness. 282. In prison, OMH designated W.P. a mental health service level of 1-S, which denotes the highest level of mental health need in the state prison system. 283. W.P. has long been prescribed mental health medications, including antipsychotics. Upon his release from prison, he was prescribed Olanzapine, Abilify, Cogentin, and Depakote. He was also prescribed Metoprolol Succinate. 284. While he was incarcerated, W.P. experienced serious suicidal ideation, was placed on suicide watch, and was hospitalized at the inpatient psychiatric hospital for individuals incarcerated in state prison, Central New York Psychiatric Center. 285. OMH repeatedly determined that W.P. was not suitable for a general prison population placement, finding that he could not maintain psychiatric health without the mental health services provided in a residential prison program. 286. In the years leading up to his release, W.P. was housed in units designated exclusively for incarcerated individuals with serious mental illness, including the ICP. 287. Immediately prior to his release, W.P. was housed in the ICP at Sing Sing Correctional Facility, a maximum-security prison in Ossining, New York. 288. Prior to his release from Sing Sing, OMH determined W.P. eligible and appropriate for community-based mental health housing and supportive services. These services would be necessary to ensure that W.P. successfully re-entered the community and remained in the community, and to prevent his deterioration and potential institutionalization.
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289. OMH determined that W.P.’s necessary supportive services upon release included case management, a specialized service known as Forensic ACT, and extensive psychiatric and therapy services.
290. OMH also determined W.P. eligible and appropriate for community-based mental health housing upon release. This housing was another necessary service to ensure W.P.’s successful transition to and participation in the community.
291. OMH completed a housing referral for W.P. that recommended mental health housing if it was available.
292. OMH submitted a housing application for him on January 11, 2019, by transmitting the application to New York City’s Re-entry Coordination System.
293. On April 4, 2019, OMH also applied for his placement at a Transitional Living Residence or Transitional Placement Program.
294. The New York City Human Resources Administration confirmed W.P.’s eligibility for community-based mental health housing, conditionally approved W.P. for Level II supportive housing, and determined him eligible for placement into NY/NY I, II housing for people with serious mental illness.
295. The doctor who screened W.P. as part of his community-based mental health housing application determined that W.P. was at a “chronically elevated risk” and thus required ongoing monitoring and support to ensure his safety in the community.
296. OMH attempted to secure W.P.’s placement with New York City-based provider of community-based mental health housing, Project Renewal.
297. OMH, however, then informed W.P. that he would be discharged to the 30th Street Men’s Shelter. DOCCS approved this housing placement.
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298. Defendants decided to release W.P. to a homeless shelter notwithstanding OMH’s prior, and repeated, determinations that while incarcerated he could not function in an environment that does not provide adequate mental health supportive services—namely, the general prison population.
299. W.P. feared that the 30th Street Men’s Shelter was not equipped to meet his mental health treatment needs. The shelter does not provide the on-site mental health supportive services that OMH had determined were necessary to ensure W.P.’s safe reentry.
300. The 30th Street Men’s Shelter also is not the community-based mental health housing for which OMH determined W.P. eligible and appropriate.
301. DOCCS discharged W.P. to the 30th Street Men’s Shelter on May 17, 2019. 302. At 30th Street, W.P. was housed in a dorm setting with six other people. The conditions were filthy and the mental health support he required was not provided. 303. On June 27, 2019, W.P. was transferred to Delta Manor Shelter in the Bronx, New York. 304. Delta Manor is a mental health shelter. There are case managers, doctors, and nurses on site at certain hours, but unlicensed staff is responsible for providing residents their medication in the evenings. Delta Manor is located in a predominantly Black and Latinx neighborhood that has suffered from decades of governmental disinvestment and neglect. 305. Delta Manor provides neither the services that W.P. would receive in an integrated, community-based mental health housing program nor the opportunities to forge ties to non-disabled persons in the community. 306. Residents at Delta Manor are housed in a group setting, with dorms ranging from five to fourteen beds.
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307. According to its website, Delta Manor houses “an average of 200 homeless men with mental illnesses each year.”
308. Residents and visitors to Delta Manor are subjected to security procedures before they enter, including stepping through a metal detector. There are stringent curfews and all property is subject to search.
309. OMH has never rescinded its determination that W.P. is eligible and appropriate for community-based mental health housing and supportive services. Despite this, W.P. has spent well over a year in the New York City homeless shelter system.
310. Level II supportive housing and NY/NY I, II housing constitutes the integrated, non-institutional environment W.P. needs to prevent his deterioration and future segregation.
311. Since June 2019, Delta Manor staff has continued to search for appropriate housing for W.P., but such housing remains unavailable.
312. On or about May 29, 2020, in response to the COVID-19 pandemic, City officials temporarily relocated residents of Delta Manor, including W.P., and shelter staff to a hotel in Manhattan so that the shelter could be sanitized.
313. The residents of Delta Manor still reside together in this hotel. 314. The move has disrupted W.P.’s meetings with his case worker who had been attempting to locate community-based mental health housing for W.P. 315. W.P. has been told that he will be returned to Delta Manor by the Fall of 2020. 316. W.P.’s mental health has deteriorated during his time in the shelter system. While in the homeless shelter system, W.P. has been deprived of privacy and lives with residents with significantly impaired abilities to maintain hygiene and control symptoms of their illness. W.P. witnesses fights among residents and has little recourse to feel safe other than self-isolation.
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These unstable conditions greatly exacerbate his anxiety, intensify his feeling of needing to be constantly vigilant, and make him fear for his safety.
317. The shelter placement greatly increases the risk that W.P. will suffer a mental health crisis resulting in hospitalization, or an episode that endangers his parole status.
318. While at Delta Manor, W.P. complained about the housing conditions at the shelter to his parole officer and requested to be relocated. His parole officer rejected this request, leaving W.P. to feel trapped at the shelter.
319. W.P. remains in the homeless shelter system solely because he requires community-based mental health housing that Defendants have not made available.
320. OMH’s failure to provide appropriate community-based mental health housing and supportive services causes long waiting lists for such programs and services and has caused W.P.’s prolonged stay in the homeless shelter system.
321. The longer W.P. remains in the homeless shelter system, the greater likelihood his mental health will deteriorate further, resulting in institutionalization or reincarceration.
322. W.P. desires to reside and receive programs and services in community-based mental health housing.
C. D.H. 323. Plaintiff D.H. is a 29-year-old Black man who was released from state prison on
or about June 22, 2020. He will be on post-release supervision until March 14, 2021. He is a resident of Orange County.
324. D.H. has diagnoses of schizoaffective disorder bipolar type and anti-social personality disorder.
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325. D.H. has long been prescribed mental health medications, including antipsychotics.
326. D.H. also has a history of using alcohol, cocaine, and marijuana. OMH has classified D.H.’s substance usage as a disorder.
327. When D.H. was in DOCCS custody, OMH determined him to be an individual with serious mental illness.
328. In prison, OMH designated D.H. a mental health service level of 1-S, which denotes the highest level of mental health need in the state prison system.
329. D.H. experienced multiple mental health crises while he was incarcerated and required placement on crisis observation status—a status involving observation and monitoring of patients whom OMH determine are psychiatrically unstable.
330. Defendants have repeatedly offered D.H. the prospect of community reintegration, only to quickly return him to prison after his release.
331. In the last two years, Defendants released D.H. four times and re-incarcerated him three times. In each case, Defendants did not provide D.H. necessary community-based mental health housing and supportive services upon release. When D.H. deteriorated as a result of Defendants’ failure to provide these services, Defendants pursued parole violation charges against him, including for minor violations such as relapsing into substance use and failing to complete mental health and recovery day programs. In effect, Defendants have subjected D.H. to a vicious cycle of prison, inadequate mental health care, psychiatric harms, and reincarceration.
332. Ahead of each of D.H.’s open dates for parole release, OMH determined him eligible and appropriate for community-based mental health housing and supportive services.
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These services were necessary to ensure that D.H. remained in the community, and to prevent his deterioration and potential institutionalization.
333. OMH submitted applications for community-based mental health housing and supportive services five times on D.H.’s behalf: on March 29, 2018, December 10, 2018, April 11, 2019, August 14, 2019, and May 5, 2020. Not once, however, did D.H. receive appropriate housing and services when released from prison.
334. In 2018, D.H. met one of Orange County’s highest priority categories for housing. However, Defendants held D.H. in prison for months merely because housing was unavailable; placed D.H. on a waiting list for housing; and released D.H. on December 19, 2018 to DOCCS parole housing in Newburgh, New York, operated by Bridges of New York.
335. In 2019, OMH advised D.H. that housing would not actually be available on his May 19, 2019 release date, and DOCCS again released D.H. to Bridges of New York.
336. The parole housing to which DOCCS released D.H. is located in a city that is predominantly Black and Latinx and has suffered from decades of governmental disinvestment and neglect.
337. Bridges of New York provides temporary shelter for up to 14 adult men “transitioning out of the New York State Department of Corrections and Community Supervision.”
338. Bridges of New York does not provide medical or mental health services on site and has no full- or part-time medical or mental health practitioners on staff.
339. After another period of reincarceration, DOCCS released D.H. in the early Fall of 2019, without placing him into community-based mental health housing. D.H. was released to his grandmother’s home.
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340. During his two releases to the community in 2019, OMH did not provide necessary supportive services to assist D.H. with remaining in the community following his release to parole housing or to his grandmother’s residence. For example, D.H. did not receive assistance reinstating benefits and had to navigate that process on his own.
341. Furthermore, OMH did not assist D.H. with obtaining individualized behavioral health home and community-based supportive services, such as a peer support, educational, vocational and employment services, family support, and recovery-oriented rehabilitative services.
342. The absence of housing and supportive services greatly exacerbated D.H.’s stress and impaired D.H.’s ability to manage his needs and cope with the demanding requirements of his DOCCS parole officer.
343. D.H. believes that having someone to turn to for support would have aided his reintegration and to overcome day-to-day challenges.
344. DOCCS most recently re-incarcerated D.H. on March 2, 2020. 345. Despite OMH’s submission of a new application for community-based mental health housing for D.H.’s release in the summer of 2020, DOCCS again explored releasing D.H. to Bridges of New York. 346. On or about June 22, 2020, DOCCS transferred D.H. to the Intensive Treatment Unit located within Rockland Psychiatric Center. 347. On July 23, 2020, D.H.’s parole officer asked D.H. to sign release papers. 348. D.H. remains on a waiting list for community-based mental health housing, with no prospective date for his receipt of services.
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349. Defendants have repeatedly implored D.H. to be “patient” while waiting for the services he desires and requires.
350. By depriving D.H. of community-based mental health housing and supportive services he requires, Defendants place D.H. at risk of again relapsing, deteriorating, and returning to jail, prison, or another segregated setting.
351. Defendants’ actions and inactions have already caused D.H.’s segregation multiple times in the last two years and resulted in D.H. being denied any meaningful opportunity to obtain an education, get a job, and support his family.
352. In D.H.’s own words, Defendants “keep playing with my freedom.” 353. D.H. desires to reside and receive programs and services in integrated community-based settings. IV. Defendants A. Governor Andrew Cuomo 354. Defendant Andrew Cuomo is the Governor of the State of New York, a public entity covered by the ADA and Section 504. N.Y. Const. Art. 4, § 1. 355. Defendant Cuomo is responsible for supervising and controlling DOCCS and OMH, seeking and expending funds to implement the programs and deliver the services of those agencies, and taking care that the laws of the State of New York are faithfully executed. N.Y. Const. Art. 4, § 3; Art. 5, § 4; Art. 7, § 2. 356. Defendant Cuomo appoints the commissioners of OMH and DOCCS, who serve at his pleasure. N.Y. Const. Art. 5, § 4; Art. 13, § 2. 357. Defendant Cuomo oversees inter-agency coordination between OMH and DOCCS.
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358. Defendant Cuomo oversees, directs, and funds New York State’s efforts to provide community-based mental health housing and supportive services to people with serious mental illness released from prison.
359. Defendant Cuomo receives reports on the mental health system and is involved in developing policies to address the needs of people with mental illness and to encourage their full participation in society. N.Y. Mental Hyg. Law §§ 5.07, 7.07(b); N.Y. Exec. Law § 164.
360. In 2012, Defendant Cuomo established an Olmstead Cabinet pursuant to Executive Order No. 84, appointed the Cabinet’s Chair, and charged the Cabinet with providing recommendations to him for development, implementation, and coordination of an Olmstead Plan to meet the requirements of the ADA.
361. Defendant Cuomo appoints members to and receives reports from New York State’s Most Integrated Setting Coordinating Council, which is required to ensure that individuals with disabilities receive services in the most integrated setting appropriate to their needs. N.Y. Exec. Law §§ 702; 703(1), (4).
362. Defendant Cuomo is sued in his official capacity. B. New York State Office of Mental Health
363. Defendant OMH is charged by statute with the “responsibility for seeing that mentally ill persons are provided with care and treatment, that such care, treatment and rehabilitation is of high quality and effectiveness, and that the personal and civil rights of persons receiving care, treatment and rehabilitation are adequately protected.” N.Y. Mental Hyg. Law § 7.07(c).
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364. Defendant OMH is required to develop a comprehensive, integrated system that ensures people with mental illness receive services in their communities whenever possible and that sparingly utilizes institutions to provide care.
365. Defendant OMH enforces the laws and regulations applicable to mental health units within the DOCCS system and is responsible for developing, implementing and overseeing New York State’s community-based mental health housing programs and supportive services.
366. Defendant OMH is a public entity covered by the ADA and Section 504. C. Commissioner Ann Marie T. Sullivan
367. Defendant Ann Marie T. Sullivan is the Commissioner of OMH, a public entity covered by the ADA and Section 504.
368. Defendant Sullivan is responsible for the administration and operation of OMH, including the provision of services to individuals with mental illness who are incarcerated and discharged from prison. She is responsible for establishing standards for operating and funding a continuum of community-based mental health housing. N.Y. Mental Hyg. Law § 41.44; N.Y. Correct. Law §§ 401, 404.
369. Defendant Sullivan is also responsible for determining what services to provide, in what setting to provide them, and how to allocate funds for each program and where to allocate such funds. N.Y. Mental Hyg. Law § 7.15.
370. Defendant Sullivan oversees OMH’s coordination and planning with local governments to ensure that care, treatment, and rehabilitation may be received in people’s home communities. N.Y. Mental Hyg. Law §§ 7.01, 7.07(a).
371. Defendant Sullivan is sued in her official capacity.
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D. New York State Department of Corrections and Community Supervision 372. Defendant DOCCS enforces the laws and regulations applicable to New York
State prisons. 373. Defendant DOCCS is statutorily responsible for the confinement and habilitation
of individuals placed in state correctional facilities and for their programming, supervision, and the conditions of their confinement.
374. Defendant DOCCS is also responsible for the management of individuals released to community supervision.
375. Defendant DOCCS is a public entity covered by the ADA and Section 504. E. Commissioner Anthony J. Annucci
376. Defendant Anthony J. Annucci is the Acting Commissioner of DOCCS, a public entity covered by the ADA and Section 504.
377. Defendant Annucci is responsible for the administration and operation of DOCCS, including the care, custody, parole, and post-release supervision of individuals with mental illness who are incarcerated and discharged from prison. N.Y. Correct. Law § 201.
378. Defendant Annucci is charged with the “management and control of persons released on community supervision” and inquiring “into all matters connected with said community supervision.” N.Y. Correct. Law § 112(2).
379. Defendant Annucci is sued in his official capacity. F. Deputy Commissioner Anne Marie McGrath
380. Defendant Anne Marie McGrath is a Deputy Commissioner of DOCCS, a public entity covered by the ADA and Section 504.
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381. Defendant McGrath is responsible for managing the inmate population, including all movement and transportation of incarcerated people and the transfer and placement of incarcerated people in residential treatment facilities.
382. Defendant McGrath is sued in her official capacity. FACTUAL ALLEGATIONS
I. Defendants are Responsible for Ensuring that Plaintiffs Receive Community-Based Mental Health Housing and Supportive Services on the Date of their Release from State Prison. 383. Defendants are responsible for planning for the release from New York State
prisons of people with serious mental illness who are homeless or at risk of homelessness. 384. Defendants are responsible for making available adequate community-based
mental health housing programs and supportive services for this population. A. The Integration Mandate of the ADA and Section 504 385. Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, and Section
504 of the Rehabilitation Act, 29 U.S.C. § 794, prohibit discrimination against individuals with disabilities, including those with mental illness.
386. 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.
387. Similarly, Section 504 states that “no otherwise qualified individual with a disability in the United States . . . 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).
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388. Implementing regulations for the ADA and Section 504 require 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); 28 C.F.R. § 41.51(d); see also 45 C.F.R. § 84.4(b)(2). An integrated setting is one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. part 35, App. B. These statutes and regulations are often referred to collectively as the “integration mandate.”
389. In Olmstead v. L.C., 527 U.S. 581 (1999), the U.S. Supreme Court held that a state’s failure to place a person with mental illness in the most integrated setting appropriate for his or her needs constitutes discrimination on the basis of disability, in violation of the integration mandate of the ADA.
390. The Supreme Court declared that states could not satisfy the integration mandate simply by “mov[ing] institutionalized patients into an inappropriate setting, such as a homeless shelter.” Olmstead, 527 U.S. at 605.
391. Since Olmstead, courts have held that the ADA and Section 504 also prohibit states from placing people with mental illness “at serious risk of institutionalization or segregation,” even if they reside in the community. E.g., Davis v. Shah, 821 F.3d 231, 259 (2d Cir. 2016); see United States v. Mississippi, 400 F. Supp. 3d 546, 553 (S.D. Miss. 2019) (collecting decisions).
B. New York State’s Community-Based Mental Health Housing Programs and Supportive Services 392. OMH is responsible for developing community-based mental health housing
programs and supportive services for people who are released from state prisons and for ensuring that people with serious mental illness who are homeless or at risk of homelessness upon their
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release receive assistance with obtaining housing and supportive services that address their individualized needs.
393. Community-based mental health housing is a program of safe and stable housing combined with individualized supportive services that promote health and independence.
394. Community-based mental health housing encompasses a continuum of housing models that provide different levels of supervised treatment and care coordination tailored to residents’ needs.
395. People who need greater supervision or assistance developing independent living skills generally reside in a more service-intense housing model, such as an apartment treatment program. These programs are intended to be transitional, allowing people to progress to a model that affords greater independence.
396. People in an apartment treatment program receive services within their apartments, including counseling, ADL skill development, crisis intervention, case management, socialization, and medication monitoring services. Staff visits residents multiple days per week and are on-call 24 hours a day.
397. People with greater independent living skills generally reside in a single room occupancy residence or scattered-site supported housing. Both models are considered permanent housing.
398. People in a single room occupancy residence or scattered-site supported housing receive regular face-to-face contact with support staff and a support plan; assistance applying for benefits; appropriate referrals; orientation to their local community; and education and skill development to remain stably housed.
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399. While OMH community-based housing models vary in terms of capacity, services, and location, each offers significantly greater opportunities to participate in the community than prisons, homeless shelters, Transitional Living Residences, and other OMH facilities, all of which are segregated settings.
400. Community-based mental health supportive services are clinical, social, and rehabilitative services that enhance community living skills while preventing unnecessary hospitalization.
401. Services include clinic treatment, care coordination, on-site rehabilitation, crisis services, outreach, screening and prevention, and consultation and education related to individuals’ mental health needs.
402. Care coordination provides linkages to necessary services, goal-monitoring, and case specific advocacy, and is intended to improve health outcomes and support the successful community living of people with serious mental illness.
403. Care coordination is particularly necessary at the critical point of an individual’s re-entry to the community after incarceration.
404. People re-entering the community after incarceration (for some, many years of incarceration) may confront changes to technology, public services, and methods of accessing social services, which further heightens their need for support at re-entry.
405. For these reasons, individuals reentering the community who are indigent and coping with serious mental illness require the assistance of a care coordinator to secure immediate needs, such as emergency cash assistance, clothing, and re-activation of Medicaid coverage, and to identify the specific types of supports for their long-term needs.
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406. New York has a number of distinct intensive care coordination services for people with complex needs, including people at risk of homelessness or those with criminal justice history.
407. Care coordination may be provided by forensic intensive case management services, typically for a transitional period following release from prison; by ACT teams; or by a Medicaid Health Home or Health Home Plus.
408. The most robust of these service models is ACT, which is an evidence-based practice shown to reduce hospitalizations, housing instability, and involvement in the criminal justice system.
409. ACT teams, including Forensic ACT and Shelter ACT teams, are mobile multidisciplinary teams of mental health professionals, available 24-hours per day, seven days a week, that provide treatment, care coordination, and support services to an individual with serious mental illness with a long-term or a high need for services.
410. ACT services are designed to promote an individual’s recovery by improving psychiatric symptoms, preventing relapse, teaching skills, providing direct assistance, and securing community resources for success in the community.
411. Priority populations for ACT are people with diagnoses of schizophrenia, other psychotic disorders, bipolar disorder, and/or major or chronic depression; people with continuous high service needs that have not been met in traditional service settings, including people with criminal justice history or at risk of homelessness; and individuals subject to court-ordered treatment, known as Assisted Outpatient Treatment.
412. Forensic ACT or Shelter ACT provide ACT services adapted specifically to people with criminal justice history or people in the homeless shelter system.
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413. Recipients of Medicaid who become suitable for discharge from ACT and intensive case management services may receive care coordination through a New York State Health Home, with some individuals eligible for more intensive care coordination services available with Health Home Plus. Because of waiting lists for ACT, OMH often refers individuals to a Health Home or Health Home Plus pending availability for ACT.
414. An ACT team or Health Home care coordinator is responsible for directly assisting eligible recipients with securing behavioral health home and community-based services, available through a Health and Recovery Plan. The services are flexible, rooted in personcentered care planning, and aimed at supporting an individual’s needs and unique goals in the community.
415. While New York has an array of community-based mental health housing and supportive services, the capacity in these programs is outstripped by the need and programs are inadequately administered.
416. Counties across the state are forced to maintain long waiting lists for communitybased mental health housing.
417. In 2019, for example, Westchester County reported a waitlist for mental health housing of 1,561 people, Monroe County reported their “shortest waitlist being about 3-6 months for a community residence and over 2 years now for supported housing,” Nassau County reported a waitlist of over 500 people, Niagara reported a waitlist of between 50 and 100 people “at any given time” with “average wait times of 30 months or more” for supported housing, which “remains a critical unmet need,” Ulster County reported a waitlist of 159 people, Rockland County reported that “the availability of both OMH licensed residences and OMH Supportive Housing does not match the scope or pace of the need,” Schenectady County
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summarized that “[t]he need for safe and affordable housing . . . is at a critical level,” and in Orange County, where Plaintiffs’ C.J., M.J., and D.H. require housing, average daily waitlists were over 158 people for apartment treatment beds and over 474 people for supported housing apartments—making the placement of people with disabilities in affordable housing, according to the county, “near impossible.”
418. Similarly, counties across the state report long waitlists for supportive services, such as ACT. One county, for example, wrote in 2019 that mental health clinics “continue to show signs of distress” in providing services, with one such clinic reporting “a waitlist in the hundreds of individuals requesting intake appointments for the initiation of supportive clinical services.”
419. Finally, despite New York State’s promise to greatly expand access to behavioral health home and community-based services, poor implementation has resulted in people with serious mental illness not receiving needed services that support community living. II. New York Has a Comprehensive Scheme for the Release of Individuals with Serious
Mental Illness from Prison. 420. Defendants are responsible for discharging Plaintiffs from state prison to community-based mental health housing and ensuring that they receive supportive services that meet their mental health needs in the most integrated setting.
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A. Categories of Release to Community Supervision 421. People serving indeterminate sentences—sentences with minimum and maximum
terms of imprisonment—may be released to parole after completing their minimum term of imprisonment.
422. The New York State Board of Parole—an independent, quasi-judicial body within DOCCS—is authorized to grant or deny parole in its discretion, subject to certain criteria provided in state law and regulations.
423. If parole is granted, the Parole Board sets an “open date for parole release.” 424. A person who receives an open date for parole release is known as a “parole grantee.” 425. If a person is not released on parole, they may next be released on their “conditional release” date if they have earned statutory “good time.” Conditional release is not available to people sentenced to life. 426. Each DOCCS prison’s Time Allowance Committee meets approximately four months before an individual’s presumptive conditional release date to approve the release date based on good behavior and program participation. 427. DOCCS will not discharge from prison any person who had been granted parole or conditional release until DOCCS approves an anticipated community residence for that person. 428. A person not released to parole or conditional release will remain in prison until their “maximum expiration date,” the last day of their sentence. 429. On the maximum expiration date, DOCCS loses legal authority to incarcerate the person pursuant to their sentence.
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430. DOCCS calculates and records each person’s parole eligibility, conditional release, and maximum expiration dates upon admission to DOCCS custody.
431. In 1998, the New York State Legislature passed “Jenna’s Law,” which required courts to impose a period of “post-release supervision” after a determinate sentence (a sentence with a single term of imprisonment).
432. Like parole, post-release supervision is a form of “community supervision” that subjects the individual to DOCCS’s oversight after release from prison.
433. According to the legislative history for Jenna’s Law, post-release supervision was intended to ensure that offenders will be successfully reintegrated into society.
434. Post-release supervision terms “commence upon the person’s release from imprisonment to supervision.” N.Y. Penal Law § 70.45(5).
435. DOCCS identifies individuals released from prison to community supervision— whether on parole, conditional release, or post-release supervision—as “releasees.”
436. The Parole Board is responsible for setting conditions of release for releasees. 437. Certain general conditions apply to all releasees, such as prohibitions on the possession of drug paraphernalia and firearms. 438. The Parole Board may also impose so-called “special conditions.” These conditions may include a requirement to cooperate with mental health evaluation referrals and treatment as directed by the parole officer, a prohibition on communication with certain individuals, a requirement to abide by curfews, and requirements to engage in substance abuse, alcohol abuse, and anti-aggression counseling. B. Preparing People with Serious Mental Illness for Release from Prison 439. OMH and DOCCS share responsibility for discharging people with serious mental illness from prison, including by planning for, assessing, and approving housing and supportive
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services and for providing for continuity of care in the community to which they may be released.
440. Annually, approximately 2,050 people with serious mental illness are discharged from New York State prisons to the community.
441. OMH identifies people with serious mental illness by assigning them an “Sdesignation” or an OMH “Level 1” or “Level 2” classification.
442. OMH is required to provide a comprehensive discharge plan to every person with serious mental illness who is preparing to return to the community from prison.
443. OMH is responsible for providing individuals returning to the community with an adequate supply of psychiatric medications and an appointment at a mental health clinic for ongoing treatment needs.
444. As part of the discharge planning process, OMH counselors are required to meet with people with serious mental illness at least three months prior to their scheduled release date to assess their needs upon release, including housing needs.
445. OMH must prepare and submit a Single Point of Access application to secure for the individual the community-based mental health housing and any other necessary services in the county to which they will return.
446. If a person with serious mental illness will be homeless upon release, is at risk of homelessness, or otherwise requires mental health housing, OMH staff must apply for housing using the Single Point of Access application.
447. OMH’s preparation of a Single Point of Access application for housing reflects its assessment that the person is eligible and appropriate for community-based mental health housing.
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448. OMH is required to apply for and secure necessary care coordination services. 449. DOCCS staff collaborate with OMH in planning for a person’s housing needs and developing a release plan that includes suitable housing in the community. 450. As part of that collaboration, DOCCS counselors ask each person with serious mental illness to propose a residence to which he or she can be released. 451. DOCCS parole staff are responsible for investigating the proposed residence. 452. DOCCS has the final authority to approve or reject the proposed residence. 453. Pursuant to OMH policy, an individual is deemed homeless or at risk of homelessness if he or she has submitted a proposed address that DOCCS has rejected. 454. As many incarcerated people lack housing and financial resources, many propose a local homeless shelter as their residence. 455. Defendants have historically rejected shelters, however, as not suitable for people with serious mental illness. 456. Because their proposed residence is often rejected, indigent people with serious mental illness are often left with only one suitable housing option upon release from prison—the community-based mental health housing OMH deemed them eligible and appropriate for. 457. As long as individuals remain on community supervision, DOCCS has the authority to approve or reject where they reside. 458. Plaintiffs are individuals forced by Defendants to remain incarcerated in prison beyond their open dates for parole release, approved conditional release dates, and maximum expiration dates, or face discharge without critical mental health care, when no community-based mental health housing or supportive services are available.
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C. The “Release” of People with Serious Mental Illness to State Prison on RTF Status 459. New York law authorizes DOCCS to transfer individuals who are released to
post-release supervision status, having reached their maximum expiration dates, to an RTF. 460. New York law defines RTFs as community-based placements that promote a
person’s reintegration into society: “Residential treatment facility” [is a] correctional facility consisting of a community based residence in or near a community where employment, educational and training opportunities are readily available for persons who are on parole or conditional release and for persons who are or who will soon be eligible for release on parole who intend to reside in or near that community when released.
N.Y. Correct. Law § 2(6). 461. The New York Correction Law further requires DOCCS to secure education,
employment, rehabilitation, and reintegration services for individuals placed in RTFs. 462. A releasee placed in an RTF “may be allowed to go outside the facility during
reasonable and necessary hours to engage in any activity reasonably related to his or her rehabilitation and in accordance with the program established for him or her.” N.Y. Correct. Law § 73.
463. Two New York statutes authorize DOCCS to place an individual who is released to post-release supervision in an RTF.
464. Penal Law § 70.45(3) provides that the Parole Board may require a time-limited RTF placement as a special condition of community supervision:
[T]he board of parole may impose as a condition of post-release supervision that for a period not exceeding six months immediately following release from the underlying term of imprisonment the person be transferred to and participate in the programs of a residential treatment facility as that term is defined in subdivision six of section two of the correction law [as quoted in paragraph 460 above].
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465. If the Parole Board imposes RTF placement as a condition of post-release supervision, DOCCS, not the Board, is responsible for selecting the specific RTF to which the individual will be transferred and for supervising the individual while placed there.
466. Correction Law § 73(10) separately provides that: The commissioner [of DOCCS] is authorized to use any residential treatment facility as a residence for persons who are on community supervision. Persons who reside in such a facility shall be subject to conditions of community supervision imposed by the board. 467. Therefore, even if the Parole Board does not impose RTF placement as a condition of release, the Correction Law authorizes DOCCS to transfer an individual on postrelease supervision to an RTF placement. 468. Pursuant to Correction Law § 70, DOCCS commissioners have designated 12 correctional facilities, spread across the state, to function as RTFs: Green Haven, Wende, Fishkill, Woodbourne, Orleans, Mohawk, Mid-State, Hudson, Albion, Rochester, and Queensboro, as well as Edgecombe Residential Treatment Facility. These 12 facilities also function as general correctional facilities for incarcerated individuals serving their sentences. 469. The majority of facilities designated as RTFs are medium or maximum security level prisons. 470. There are no separate “residential treatment facilities” in the prison compounds where Plaintiffs are incarcerated. 471. Plaintiffs are subjected to the same conditions and restrictions of prison confinement as they have been since they began their sentences. Even though Plaintiffs are labelled “releasees,” in reality they remain prisoners in every respect.
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III. Defendants Fail to Serve Plaintiffs in the Most Integrated Setting Appropriate to their Needs. 472. Defendants use segregation as a substitute for the community-based mental health
housing and supportive services that people with serious mental illness need and are appropriate for when they reach their lawful release date from prison.
473. Defendants segregate Plaintiffs in prison past their open dates for parole release, approved conditional release dates, and maximum expiration dates, or alternatively in a range of institutional and segregated settings or settings that are inappropriate and inadequate to meet their mental health needs, because there is inadequate capacity in the community-based mental health housing described in Section I(B) above.
A. Defendants Fail in their Mandate to Serve the Community-Based Mental Health Housing and Supportive Service Needs of People with Serious Mental Illness Released from State Prison. 474. Defendants Cuomo, Sullivan, and OMH are responsible for providing necessary
community-based mental health housing and supportive services for Plaintiffs and putative class members, as Plaintiffs and putative class members are people with serious mental illness.
475. The stated goal of OMH’s housing programs is to provide integrated housing, enabling residents to live independently, to succeed in the community, and to interact with nondisabled persons to the fullest extent possible.
476. OMH has repeatedly recognized the importance of providing community-based mental health housing to members of this population who would otherwise be homeless upon their release.
477. OMH has systematically failed to address the foreseeable need for adequate capacity in community-based mental health housing programs to meet the demands of this population.
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478. OMH knows of and has failed to respond to counties’ local needs for an adequate number of community-based mental health housing beds generally and specifically for people with serious mental illness released from prison.
479. OMH knows that large numbers of people with serious mental illness are discharged from prison to the shelter system despite their need for intensive mental health services and housing.
480. County personnel who process Single Point of Access applications for incarcerated people report back to OMH staff about the availability of community-based mental health housing beds.
481. Recognizing the importance of collaboration among state and local agencies, Defendant Cuomo established the Council on Community Re-Entry and Reintegration (the “ReEntry Council”) in 2014 to provide recommendations regarding the reentry of people into the community from prison. Members of the Governor’s Office sit on this council.
482. Defendant Cuomo has adopted recommendations by the Re-Entry Council regarding the need to create additional community-based mental health housing for people released from prison.
483. Defendant Cuomo’s adoption of these recommendations led to the development of some community-based mental health housing for people released from prison.
484. The number of beds created for people released from prison has been inadequate to meet discharge planning needs.
485. Across the state, counties have continued to describe their lack of capacity to meet the need for mental health housing in reports to OMH.
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486. OMH recognizes the need for supportive services for people with serious mental illness, in particular the “priority” populations OMH has identified, which includes people with recent criminal justice history or risk of criminal justice involvement, and people at risk of homelessness.
487. Defendants Cuomo and OMH, however, have failed to develop adequate capacity in supportive services proportionate to this recognized need.
488. For example, there is limited capacity for ACT, resulting in waiting lists even for people in identified priority categories. Due to this limited capacity, OMH has implemented a triage approach, rationing ACT services based on ad hoc determinations of how someone’s need compares to other applicants.
489. Many individuals with serious mental illness, despite being eligible for ACT, do not receive such support at the critical juncture of release from prison.
490. The lack of adequate supportive services harms people’s health and ability to remain in the community.
491. Defendant Cuomo has directed funding to local agencies to coordinate services for people with serious mental illness who are released from prison, but he has done so for approximately only one-third of New York’s counties.
492. As a result, there are inadequate services for people with serious mental illness reentering the community from prison.
493. Although Defendant Cuomo and OMH have announced initiatives to develop housing for vulnerable populations, including scattered-site supported housing specifically for people released from prison, these initiatives are insufficient in light of the annual number of people being released from prison who need community-based housing.
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494. Plaintiffs routinely remain on waiting lists for community-based mental health housing, and they remain institutionalized in prison, for months and sometimes years.
495. If released from prison, Plaintiffs routinely remain on waiting lists for community-based mental health housing for months or in many cases over a year.
B. Defendants Institutionalize Members of the General Class and RTF Subclass in Segregated and Punitive Prison Conditions Inappropriate for Individuals with Serious Mental Illness Approved for Release to the Community. 496. Prison is a segregated setting. 497. In prison, Plaintiffs have no meaningful ability to engage in mainstream society. 498. Plaintiffs are held in rural, geographically isolated regions, often without nearby
public transportation and far from the communities to which they will return. 499. Defendants do not allow Plaintiffs to leave the prison at any time, even when they
demonstrate good behavior and there has been no finding that they pose a threat to the safety or welfare of the community.
500. Plaintiffs are unable to attend job interviews, visit their home towns or cities, or pursue education in the community.
501. While in prison, Plaintiffs are often housed in separate specialized units for people with serious mental illness and other disabilities.
502. While these units provide services to help incarcerated people with disabilities manage a secure environment, Plaintiffs have few opportunities to interact with non-disabled people.
503. Even when not housed in specialized units in prison, Plaintiffs have fewer opportunities to interact with non-disabled people than they would in the community due to the high prevalence of disabilities in state prison.
504. Plaintiffs are housed in cells or dorms. 60

505. Cells are locked with a metal-barred door and may not have a window to the outof-doors.
506. In dorms, people are assigned to a “cube” consisting of their bed and a small area for their possessions.
507. Prison rules restrict the quantity and type of personal property Plaintiffs may possess.
508. Plaintiffs are afforded no autonomy or choice in their daily life activities. 509. Plaintiffs are required to wear prison uniforms. 510. Plaintiffs are not permitted to pursue hobbies, programs, or activities according to their interests and personal goals. 511. If they need to purchase anything, Plaintiffs may do so only from the prison commissary or private vendors, or rely on family or friends to send a care package that complies with prison rules. 512. Plaintiffs’ day and night are determined by Defendants according to the prison schedule. They eat, sleep, shower, and exercise only as dictated by DOCCS’s schedule and rules. 513. Plaintiffs have no freedom of movement in the facility. 514. Plaintiffs must abide by rigid rules on escort and movement procedures, such as standing at painted markings on the floors of the prison that direct prisoners where to pause or walk. 515. Plaintiffs are subject to prison rules and procedures related to shackles and restraints. 516. In fact, Plaintiffs who have experienced mental health crises have been required to wear shackles when escorted outside their observation cells.
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517. Security considerations, prison protocol and rules, and the availability of prison resources restrict Plaintiffs’ mental health treatment.
518. Plaintiffs who exhibit suicidal or self-injurious behavior, for example, may be placed in stark observation cells, tantamount to solitary confinement, where they are stripped naked, required to wear tear-proof smocks, and held for prolonged periods of time.
519. Plaintiffs are subject to prison discipline for as long as they remain in prison. 520. Despite the well-known risk of serious harm to their psychiatric condition, prison staff frequently subject Plaintiffs to disciplinary segregated confinement, including for minor infractions. 521. In addition, Plaintiffs may receive disciplinary sanctions depriving them of telephone calls, visits, and packages from friends and family. 522. DOCCS may even rely on rule violations to revoke Plaintiffs’ open dates for parole release, parole status, conditional release, or post-release supervision, all without the individual having ever left prison. 523. Some Plaintiffs are so fearful of receiving disciplinary “tickets” from prison staff that they refuse to leave their cell or avoid interactions with other individuals. 524. Plaintiffs are subject to the prisons’ rigid rules on visits from family and loved ones. 525. Family members must plan visits only on certain days, travel to the prison (for some, many hours away from their home), go through invasive security checks, and have timelimited visits in crowded and noisy visiting areas while being monitored by corrections officers. 526. Family connections become strained, and even lost, as Plaintiffs remain in prison past their release dates.
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527. Plaintiffs are also subject to the stigma of continued incarceration. An individual’s support network may not understand why their loved one remains in prison and assume it is because of some wrongdoing or unknown infraction.
528. Plaintiffs are subject to prison rules limiting confidential communications with their attorneys.
529. Prisons provide no meaningful opportunity for people with mental illness to learn to enter the community after incarceration.
530. In this segregated security environment, Plaintiffs have no opportunities to obtain basic life skills—such as how to use a cell phone, how to add money to a public transportation fare card, how to manage a limited budget to care for personal needs, or how to use the internet to find doctors, housing, and services.
531. Plaintiffs could develop skills integral to functioning independently and integrating into modern society in community-based mental health housing and with mental health supportive services.
C. Members of the Discharge Class Are Unnecessarily Segregated or Placed at a Serious Risk of Institutionalization Upon Their Release from Prison. 532. Defendants subject Plaintiffs who are released from prison to a vicious cycle of
segregation from the community, psychiatric decompensation, and reincarceration because of Defendants’ failure to develop adequate community-based mental health housing and supportive services.
i. Discharges to the Homeless Shelter System 533. Plaintiffs in the Discharge Class are routinely released from prisons to the homeless shelter system—including homeless shelters, hotels and motels that house people experiencing homelessness, and shelter-like “DOCCS parole housing” facilities—due to
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inadequate capacity in the integrated, community-based mental health housing and supportive service programs for which they are eligible.
534. New York State has long had a homelessness crisis. 535. New York State has the highest rate of homelessness in the United States, experienced the largest rise in the homeless population over the past decade, and has the second largest population of people experiencing homelessness. 536. Homeless shelters and DOCCS parole housing facilities are frequently located in majority Black and Latinx neighborhoods and neighborhoods that face the highest rates of poverty due to generations of governmental disinvestment and neglect. 537. Though constituting only approximately 17% of the state’s population, Black people constitute the overwhelming majority (nearly 70% or approximately 65,000 people) of unhoused people in the state, meaning that Black people disproportionately experience the harmful effects of deficient and discriminatory policies related to homelessness. 538. Defendants contribute to the rising homeless population by releasing individuals from state prisons directly to the homeless shelter system. 539. In a January 2020 report, the New York City Council reported that the majority of people returning to the City from state prisons were discharged to homeless shelters. 540. The New York City Council concluded in its report that “State prisons too often release parolees directly to City shelters instead of assisting them with adequate reentry planning and housing placements” and that as a result of this “pipeline into City homelessness . . . formerly incarcerated individuals often do not have a place to call home, despite the State’s legal responsibility to conduct discharge planning.” The report urged corrective action by the State and the creation of additional housing and supportive services for those leaving prison.
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541. The advocacy group Coalition for the Homeless similarly reported in March 2020 that the majority of single adults entering the homeless shelter system in New York City from institutional settings (approximately 57% or 3,466 people) had been released from state prison. The group described “[t]he lack of housing for individuals released from State prison [as] the largest contributor to homelessness among formerly institutionalized populations.”
542. Defendants routinely release individuals with serious mental illness from state prisons to homeless shelters, hotels, motels, and DOCCS parole housing.
543. Further, Defendants establish gatekeeping criteria for programs that contribute to the homelessness of individuals with serious mental illness, such as allowing entry to some community-based mental health housing only after a year-long stay in a homeless shelter (or on the streets), even while community-based mental health housing for people just released from DOCCS is regularly over capacity.
544. Through such gatekeeping criteria, Defendants further marginalize people discharged from prison—the majority of whom are Black or Latinx and poor—by confining them to the neighborhoods in which homeless shelters are generally sited, and that experience high rates of poverty, policing, and other methods of state surveillance.
545. Between January 23, 2019 and January 31, 2020, Defendants released over 300 individuals with serious mental illness from state prisons to homeless shelters across the state.
546. During this timeframe, Defendants released dozens of individuals with serious mental illness to hotels and motels used to house people experiencing homelessness.
547. By comparison, over this same period, only about 150 people leaving state prison entered supported housing programs and roughly 8 went to apartment treatment programs, the two most integrated models of community-based mental health housing.
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548. In the vast majority of cases in which individuals with serious mental illness were released from state prisons to homeless shelters, motels, or hotels (335 of 364 releases between January 23, 2019 and January 31, 2020), Single Point of Access applications had been submitted on their behalf. Most often, these applications for community-based mental health housing and supportive services were pending for at least a month, if not months, before the individuals’ release.
549. Defendants also release individuals with serious mental illness to shelter-like facilities across the state that are operated by private providers and that contract with DOCCS to house individuals on community supervision. These facilities include halfway houses and socalled “Community Based Residential Programs,” sometimes referred to as DOCCS housing or “parole housing.”
550. Between April and August 2019, Defendants referred over 50 people with serious mental illness, who were approaching release, to DOCCS parole housing across the state.
551. Some Plaintiffs remain in homeless shelters and DOCCS parole housing for months while waiting for permanent housing.
552. Homeless shelters and DOCCS parole housing are segregated settings. 553. Plaintiffs in homeless shelters and DOCCS parole housing have fewer opportunities to interact with non-disabled persons than they would in integrated, communitybased settings. 554. As of January 28, 2019, 15,400 people experiencing homelessness in New York State had serious mental illness. 555. People with disabilities represent a disproportionate percentage of the population of people experiencing homelessness.
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556. In January 2019, for example, the non-profit CARES of NY, Inc. reported that, over the previous federal fiscal year, nearly three-fourths of the people accessing emergency shelters in Albany County had a disability.
557. In March 2020, Coalition for the Homeless similarly reported that approximately 67% of single adults in the New York City shelter system have a disabling condition impacting capacity, while 52% have a mental health condition.
558. Opportunities to interact with non-disabled people are especially limited in mental health shelters, which house a significant number of people with serious and chronic mental illness.
559. Homeless shelters, including mental health shelters, may house up to hundreds of residents in a single facility.
560. DOCCS parole housing too may house dozens of residents and some DOCCS parole housing units share buildings with homeless shelters.
561. Homeless shelters and DOCCS parole housing restrict Plaintiffs’ autonomy and choices that govern their daily life activities.
562. Plaintiffs in homeless shelters and DOCCS parole housing often share rooms or live in dormitory settings.
563. Plaintiffs in these settings also share with other residents their living spaces, including bathrooms, common areas, kitchens, and dining areas.
564. Plaintiffs released to homeless shelters or DOCCS parole housing must abide by rules beyond the conditions of their community supervision, including curfews, limits on personal property, and restrictions on visitors.
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565. Homeless shelters and DOCCS parole housing place security restrictions on entering and exiting the facilities and residents may be subject to strict monitoring, including through security cameras and on-site inspections by DOCCS’ staff.
566. Plaintiffs discharged to homeless shelters, DOCCS parole housing, and hotels or motels are deprived of stable living arrangements necessary to ensure successful reintegration into the community.
567. Many homeless shelters, for example, may require residents to move to a different shelter with little notice.
568. Homeless shelters, DOCCS parole housing, and hotels and motels do not provide the mental health services that Plaintiffs require to transition successfully to the community and maintain psychiatric stability. Instead, Plaintiffs are often left to fend for themselves.
569. Plaintiffs often have no one to contact if they experience a mental health crisis, are unable to secure public benefits, require assistance with psychiatric medications, or need counseling.
570. M.G., for example, was initially released from a prison mental health program to Hillcrest House, a DOCCS parole housing facility. Hillcrest House does not provide the individualized mental health supportive services available in programs such as community-based mental health housing, nor did M.G. receive ACT services, leaving him to struggle to manage a difficult transition, after decades of incarceration, on his own.
571. Mental health shelters are not intended to provide long-term care and do not provide the integrated mental health care for which Plaintiffs are eligible.
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572. Defendants’ reliance on the homeless shelter and DOCCS parole housing system also exposes Plaintiffs to risks of physical harms, including dangerous housing conditions and physical abuse and assault.
573. In March 2020, for example, the Office of the New York State Comptroller (“OSC”) reported that conditions at 60% of the shelters it inspected “posed significant health and safety risks to the State’s homeless population,” including by exposing residents at some shelters to “squalid living conditions.” Of the 40% that did not pose health and safety risks, OSC clarified that the conditions, “while substandard by other measures,” were merely “reasonably acceptable in the short term as an alternative to homelessness.”
574. Defendant DOCCS recognizes the risks of releasing individuals with serious mental illness to the shelter system.
575. In 2014, DOCCS issued guidance to its parole staff stating that no individuals with serious mental illness would be “approved for placement in a [Department of Homeless Services] (NY City) or [Department of Social Services] (Upstate) shelter, until further notice.”
576. According to a sworn declaration provided in this litigation in December 2019, the DOCCS Deputy Commissioner for Parole Operations and Reentry Services stated that, before DOCCS changed its practices in late 2019, DOCCS would not approve shelter releases for individuals with serious mental illness determined (by DOCCS) to require mental health housing. The Deputy Commissioner explained that DOCCS would not approve such releases, in part, “because of the safety risks to the inmate.” (ECF 92 at ¶ 9.)
577. For example, prior to the filing of this lawsuit, DOCCS rejected shelter releases for Named Plaintiffs M.G., P.C., C.J., M.J., J.R., and D.R.
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578. On December 16, 2019, Defendant DOCCS issued a memorandum stating that, if OMH determines that an individual with serious mental illness “may be released from DOCCS custody to a shelter setting, DOCCS will allow such release on their scheduled release date.”
579. DOCCS has not recanted its rationale that release to a shelter poses safety risks to at least some individuals with serious mental illness, but rather, according to Defendant Annucci, DOCCS reversed its position merely “to address concerns raised by the Court in this action and Plaintiffs’ counsel” despite its “safety concerns.”
580. The 2019 DOCCS memorandum does not have the force of law, policy, or a DOCCS directive.
581. The memorandum does not cover individuals with serious mental illness who are dually diagnosed with other disabilities as well; it has not resulted in any changes at OMH; DOCCS has not provided any training to staff to implement the memorandum; Defendants have not coordinated with counties, municipalities, or housing providers regarding the memorandum; and the memorandum can be reversed or changed at any time.
582. Notwithstanding the 2019 DOCCS memorandum, Defendants continue to claim the authority to place and hold Plaintiffs in state prisons on RTF status pursuant to the N.Y. Correction Law and N.Y. Penal Law.
583. Without the creation of additional community-based mental health housing, the December 2019 memorandum has resulted, and will continue to result, in a greater number of individuals with serious mental illness exiting prison to the homeless shelter system.
ii. Risks of Decompensation and Institutionalization 584. When Defendants release Plaintiffs in the Discharge Class to the homeless shelter system, DOCCS parole housing, or even the community without community-based mental health
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housing and supportive services, Defendants expose them to serious risks of psychiatric harms and decompensation.
585. In effect, by releasing these Plaintiffs to the homeless shelter system, Defendants suddenly cut off the bulk of mental health services that Plaintiffs had been receiving while incarcerated.
586. OMH is responsible for all mental health services that Plaintiffs receive in state prison.
587. Mental health services within the prison include screening, assessment, treatment, nursing, treatment plan review, medication monitoring, crisis treatment, rehabilitative programs, and discharge planning.
588. During the admissions process into DOCCS, OMH assesses the nature of each individual’s treatment needs, determines the mental health service level appropriate to those needs, and decides what program and housing is needed to support the individual’s psychiatric stability and safety. These determinations may change as individuals’ needs change or when the individual returns from inpatient hospitalization.
589. Defendants also account for the severity of people’s mental health needs by placing people with serious mental illness at select DOCCS prisons that have a greater capacity to provide mental health services.
590. OMH operates several residential programs, including the ICP and TrICP programs, for people with serious mental illness incarcerated in state prisons that provide structured, daytime programming, as well as clinic services.
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591. Prison-based residential programs are for people with serious mental illness who experience, or may experience, difficulty coping in the general prison population due to the severity of their illness.
592. Individuals in these programs, including the ICP and TrICP, require heightened mental health services and multi-disciplinary treatment beyond that available in a general population environment. These services include clinic services, case management, crisis intervention, adaptive skills training, and peer support, as well as structured programming related to self-advocacy, socialization, habilitation, symptom management, and self-regulation.
593. OMH also operates re-entry programs for people with serious mental illness designed to establish connections to community providers and ease transition to the community.
594. The CORP at Sing Sing Correctional Facility is one such program for people who are approaching release to the five boroughs of New York City, Nassau, Suffolk, Westchester, Rockland, Putnam, Dutchess, and Orange Counties.
595. The successful reintegration of people with serious mental illness, many of whom have required these heightened mental health services while incarcerated, depends on adequate planning for and delivery of necessary services in the community.
596. Release without community-based mental health housing and supportive services needlessly exposes individuals with serious mental illness to heightened risks of reincarceration in jails and prisons.
597. The Center on Budget and Policy Priorities, for example, has summarized the numerous studies that show that lacking stable housing can exacerbate mental illness and, conversely, that community-based mental health housing allows people with disabilities to
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maintain stability in the community, ensures that people with disabilities receive appropriate services, and reduces reliance on costly hospitalization and incarceration systems.
598. A study authored by OMH officials (including the current and former associate commissioners for the OMH Division of Forensic Services and then-Executive Director of the Central New York Psychiatric Center) similarly found that the provision of community-based mental health housing and services reduces negative outcomes, such as re-arrest, and that “psychiatric stability subsequent to release may well influence the success in the community of this population.”1
599. Yet Plaintiffs in the Discharge Class are routinely released from prison-based mental health residential programs or re-entry programs without the continuity of mental health care that they require to maintain psychiatric health.
600. Of the 364 releases of people with serious mental illness from state prisons to homeless shelters, hotels, or motels between January 23, 2019 and January 31, 2020, at least 342 involved individuals who had been receiving mental health services in a state prison designated to incarcerate individuals with the highest designated mental health service needs. Further, there were 67 releases of people from prison-based mental health treatment programs, such as the ICP, and 27 releases from the Sing Sing CORP mental health re-entry program directly to the homeless shelter system.
601. By releasing Plaintiffs in the Discharge Class without community-based mental health housing and supportive services, Defendants create serious risks that these individuals will
1 Donna L. Hall, Richard P. Miraglia, Li-Wen G. Lee, Deborah Chard-Wierschem and Donald Sawyer, Predictors of General and Violent Recidivism Among SMI Prisoners Returning to Communities in New York State, 40 Journal of the American Academy of Psychiatry & the Law 221 (2012), http://jaapl.org/content/40/2/221 (last accessed August 8, 2020).
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suffer psychiatric harms and, as a result, face unnecessary segregation in psychiatric hospitals or units, Transitional Living Residences, or other institutional settings.
iii. Release to Segregated Settings 602. Defendants also release some members of the Discharge Class from prison directly to segregated and institutional placements affiliated with OMH psychiatric hospitals, despite these Plaintiffs’ eligibility to be served in more integrated settings. 603. For example, Defendants release Plaintiffs to Transitional Living Residences, Transitional Placement Programs, Crisis Residences, and State-Operated Community Residences. 604. At times, OMH uses the term Transitional Living Residences as an umbrella term to refer to “all state operated residences,” including Transitional Placement Programs, Crisis Residences, and State-Operated Community Residences. 605. Defendant Sullivan explained in March 2020 that “when OMH is notified by DOCCS that [an] inmate patient is releasing, and OMH has made a clinical determination that the inmate patient requires mental health housing upon release from DOCCS custody, OMH will recommend placing the inmate in a Transitional Living Residence in the event that no other appropriate community-based mental health housing is available as of the time of the inmate’s release date . . . .” 606. Transitional Living Residences are not integrated community-based mental health housing. 607. These releases to Transitional Living Residences include Plaintiffs who were or would have been held past their lawful release dates.
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608. Referrals to Transitional Living Residences are handled by OMH officials in the agency’s central office.
609. OMH pre-release coordinators at state prisons are instructed to continue to seek more integrated mental health housing, even if an individual with serious mental illness approaching release has been approved for placement in a Transitional Living Residence.
610. Defendants routinely refer individuals with serious mental illness leaving state prison to Transitional Living Residences, while most often concurrently submitting applications for community-based mental health housing.
611. Between January and July 2019, for example, Defendants referred 164 individuals with serious mental illness to Transitional Living Residences, including Transitional Placement Programs, or assisted living residences, despite the fact that OMH determined the vast majority of these individuals to be eligible for, and referred them to, community-based mental health housing.
612. Between August 1, 2019 and January 29, 2020, at least 20 individuals with serious mental illness were released from prison to Transitional Living Residences, the majority of which were on the campus of OMH psychiatric hospitals.
613. Some Plaintiffs have remained at Transitional Living Residences for months while waiting for placements in community-based mental health housing.
614. Between January and July 2020, the median length of stay for individuals in Transitional Living Residences ranged from over three months to many years, depending on the facility.
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615. Of the 20 individuals with serious mental illness released from prisons to Transitional Living Residences between August 1, 2019 and January 29, 2020, the length of stay varied and included a stay of “216 days and continuing.”
616. Transitional Living Residences, including Transitional Placement Programs, Crisis Residences, and State-Operated Community Residences are segregated settings.
617. These settings provide limited opportunities for Plaintiffs to interact with nondisabled individuals as they exclusively serve individuals with serious mental illness.
618. Each Transitional Living Residence typically houses dozens of individuals. 619. Individuals in Transitional Living Residences are subject to house rules, including curfews, for both residents and visitors, and room checks by staff. 620. There is limited privacy in Transitional Living Residences. For example, staff maintain keys to individuals’ bedrooms and lockboxes. 621. Individuals often share a bedroom with at least one other resident. 622. Individuals share a common dining area for meals, and are prohibited from eating outside of designated areas. 623. Individuals share toilets and showers with multiple residents. 624. Defendants released both C.J. and M.J. to the Middletown Transitional Living Residence, for example, because the community-based mental health housing for which they were eligible was not available. While at Middletown, C.J. and M.J. were supervised at all times; were allowed to have meals only in the common dining room; and were housed among patients who were low functioning, or had higher service needs, and who had been discharged primarily from OMH psychiatric centers. Both C.J. and M.J. suffered psychiatric harms from being placed in such a restrictive environment.
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625. One resident of a Transitional Living Residence described the conditions there as closely resembling an inpatient psychiatric hospital unit—noting that “only the furniture is different.”
626. Discharging individuals with serious mental illness to shelters, DOCCS parole housing, Transitional Living Residences, and other group living now poses the added risk of infection with COVID-19, as these settings have been particularly hard hit by this deadly virus. In June 2020, for example, Coalition for the Homeless issued a report that found that people in New York City homeless shelters were dying from COVID-19 at a rate 61% higher than that of the general population.
627. Defendants have discharged people with serious mental illness to shelters despite the risk of COVID-19 infection. For example, in March 2020, following a period of incarceration for a parole violation, C.J. met with an OMH discharge planner and DOCCS staff in preparation for his discharge from state prison. Defendants rejected C.J.’s proposal to reside with an aunt who he identified as a support system. Defendants, instead, decided to release C.J. to the homeless shelter system despite C.J.’s proposal to be with supportive family and his expressed fear about his well-being in the shelter. Defendants also informed C.J. that due to the COVID-19 pandemic he would not receive in-person supportive services from a care manager. Defendants then released CJ without addressing the obstacles the pandemic posed to immediate care needs, including obtaining clothing, food, or transportation to mental health clinic appointments.
628. Because Defendants fail to administer mental health services in integrated settings, Plaintiffs in the Discharge Class face two unwinnable scenarios: (1) release without adequate mental health care and face serious risks of psychiatric decompensation and
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segregation, or (2) release to a facility that provides mental health treatment in a segregated setting, despite their eligibility to be served in a community-based housing.
D. Plaintiffs Are People with Disabilities Who Are Qualified to Receive Services in a More Integrated Setting. 629. Plaintiffs and class members are people with mental illnesses, such as bipolar
disorder, schizophrenia, depressive disorder, post-traumatic stress disorder, and others, which substantially limit one or more major life activities, including but not limited to caring for oneself, speaking, learning, concentrating, thinking, communicating, and sleeping.
630. Plaintiffs are qualified for community-based mental health housing and supportive services upon their release from prison based on their current mental illness diagnosis and substantial limitations.
631. Plaintiffs belong to the target population for community-based mental health housing developed through housing initiatives supported by Defendant Cuomo.
632. Additionally, Plaintiffs belong to at least two priority populations identified by OMH for community-based mental health housing: the forensic population (namely individuals released from jails and prisons) and individuals who are homeless.
633. In accordance with OMH policy, Defendants identified Plaintiffs’ need for community-based mental health housing through discharge planning, periodic meetings, and assessments, and then prepared referrals to community-based services, including housing, case managers, and mental health treatment providers.
634. OMH submitted Single Point of Access applications to the counties to which Plaintiffs will be released.
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635. OMH also identifies Plaintiffs’ mental health service needs through their assessments and treatment of Plaintiffs while they are incarcerated and through the discharge planning process.
636. Nonetheless, Plaintiffs did not receive the community-based services for which they are qualified because they were instead kept in prison or released without the communitybased mental health housing and supportive services necessary for them to reside and remain in the community.
637. Plaintiffs’ confinement in prison, or release to homeless shelters, DOCCS parole housing, hotels or motels, or state-run institutional placements, such as Transitional Living Residences, is not based on Defendants’ determination that such placements are clinically necessary.
638. Plaintiffs are confined in or released to these inappropriate placements solely because Defendants have failed to provide sufficient housing and supportive services in more integrated settings.
639. After the initial Complaint in this action was filed on January 23, 2019, Defendants released some Plaintiffs to temporary settings, contrary to Defendants’ prior decision to hold Plaintiffs in prison until there was a bed available in community-based mental health housing determined appropriate for their needs.
640. On information and belief, Defendants completed a revised discharge plan for C.J. on January 30, 2019, completed a revised application for mental health housing and services for C.J. on February 7, 2019, and released C.J. to Middletown Transitional Residence on February 12, 2019 in part in response to this litigation.
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641. On information and belief, Defendants completed a revised discharge plan for M.J. on January 30, 2019, completed a revised application for mental health housing and services for M.J. on February 13, 2019, and released M.J. to Middletown Transitional Residence on February 19, 2019 in part in response to this litigation.
642. On information and belief, Defendants released J.R. to the Rockland Psychiatric Center’s Alliance House on March 18, 2019 in part in response to this litigation.
643. On information and belief, Defendants released D.R. to the Pilgrim Crisis Residence on February 13, 2019 in part in response to this litigation.
644. On information and belief, Defendants released M.G. to Hillcrest House on June 18, 2019 in part in response to this litigation.
645. Defendants discharged these Plaintiffs to settings that are located on the grounds of a psychiatric institution, are short-term, and/or are intended for a different patient population until more integrated housing became available.
E. Plaintiffs Want to Receive Services in a More Integrated Setting. 646. Plaintiffs want to live in a more integrated setting, such as community-based
mental health housing. For Plaintiffs who remain incarcerated, they want to be free from punitive conditions.
647. Plaintiffs demonstrated this desire by engaging in the housing application process, by participating in video-teleconference interviews with local housing providers, and by repeatedly expressing to DOCCS staff, including parole officers, OMH staff, and staff at the segregated settings to which they were discharged their wishes to reside in community housing.
648. For Plaintiffs in the General Class and RTF Subclass, the desire for integrated housing has also led Plaintiffs to request other alternatives to institutionalization in prison.
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649. Some Plaintiffs have proposed that they be released to family members. 650. Defendants did not release these Plaintiffs to these environments. 651. With proper supportive services in these environments, people with incarceration histories can be successful in the community. Supportive services include Forensic ACT and ACT and behavioral health home and community-based services. 652. Defendants have not, however, developed supportive services adequately to meet the needs of the mental health population. Only approximately 12 Forensic ACT teams exist in the state. ACT teams exist in only 29 counties and operate at high capacity. As a result, people referred to Forensic ACT and ACT teams are placed on waiting lists for services. F. Plaintiffs Can Be Reasonably Accommodated in Integrated Settings. 653. Defendants can reasonably accommodate Plaintiffs’ need to receive services in an integrated community setting. 654. New York already has a continuum of residential services to integrate people with serious mental illness who are being released from prison into the mainstream community. 655. Defendants have recognized the value of community-based mental health housing and supportive services as critical initiatives for this population. 656. However, existing programs and services have been developed and administered in a manner and on a scale that are inadequate for Plaintiffs’ needs, resulting in unlawful, unconstitutional, and unnecessary institutionalization and risk of institutionalization—in state prisons, segregated placements such as Transitional Living Residences and homeless shelters, and otherwise in settings where the lack of mental health services places them at a serious risk of segregation.
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657. Defendants could develop capacity in existing community-based mental health housing programs and supportive services without unreasonable costs.
658. Defendants could redirect available funds to provide services to people in integrated community settings and/or expand capacity in existing community-based mental health housing programs and supportive services.
659. For example, rather than expend significant funds to empower the corrections system to be a provider of housing (including over $12 million on DOCCS parole housing), Defendants could expand capacity in the OMH-funded housing that Plaintiffs require.
660. Redirection of funds used to incarcerate people to provide services in integrated community settings, and to prevent risks of institutionalization and reincarceration, would achieve cost savings for the state. IV. Defendants Hold Members of the RTF Subclass in Punitive Prison Conditions Past
Their Maximum Expiration Dates. 661. Defendants have a policy and practice of placing individuals with serious mental illness in state prisons, and subjecting them to conditions that amount to punishment, after they have reached their maximum expiration dates. 662. Each member of the RTF Subclass is being held in state prison. 663. These RTF Subclass members are not held in pretrial detention, are not subject to post-release supervision revocation proceedings, and are not being held pursuant to applicable civil commitment laws. 664. Instead, Defendants use state prisons to house RTF Subclass members who have nominally been “released” to community supervision because there is inadequate housing that can meet their mental health needs in the community.
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665. Defendants know that Plaintiffs’ sentences of imprisonment end on their maximum expiration dates, that those dates have passed, that Plaintiffs are homeless or at risk of homelessness, and that Plaintiffs require community-based mental health housing.
666. Further, Defendants know that Plaintiffs will remain in prison barring actions by Defendants.
667. When DOCCS determines that there are no appropriate mental health housing beds available at the expiration of RTF Subclass members’ sentences, DOCCS begins the administrative process of transferring these individuals to RTFs based in state prisons.
668. DOCCS staff have petitioned the Parole Board to impose RTF placement as a condition of their post-release supervision.
669. Defendants Annucci or McGrath approve all transfers of individuals on RTF status to state prison.
670. On their maximum expiration dates, Defendants claim to discharge members of the RTF Subclass to community supervision but in fact continue to incarcerate them in a state prison.
671. In some cases, members of the RTF Subclass are “released” to the very same prison they lived in while serving their prison sentence to live under the same conditions and restrictions.
672. Members of the RTF Subclass are not, however, serving a sentence of imprisonment.
673. DOCCS policies classify RTF Subclass members as “releasees” on community supervision, notwithstanding their incarceration in state prison.
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674. Some DOCCS records and staff also refer to RTF Subclass members as “parolees.”
675. Plaintiffs subject to a Parole Board-imposed condition of RTF placement (under Penal Law § 70.45) receive a memorandum known as Special Condition 37, which states that:
Pursuant to the authority conferred upon the New York State Board of Parole under Section 70.45(3) of the New York Penal Law to impose conditions of release upon an individual serving a determinate sentence who is to be released to serve a period of postrelease supervision, as a condition of your post-release supervision, you shall be transferred to, and participate in, the programs of a residential treatment facility, as that term is defined by Correction Law Section 2(6) for a period not exceeding six (6) months from the date of your release to post-release supervision. 676. While the Parole Board may impose RTF placement as a condition of release, the Board is not responsible for selecting the specific RTF—namely, a state prison—in which the releasee will be placed. 677. Instead, Defendants Annucci and McGrath and DOCCS staff are wholly responsible for designating facilities to serve as RTFs, keeping these individuals in state prison while on RTF status, and subjecting them to punitive conditions. 678. Plaintiffs whose RTF confinement is not authorized under Penal Law § 70.45 and who are not subject to Special Condition 37 are placed on RTF status on the DOCCS Commissioner’s purported authority under Correction Law § 73. 679. Defendant Annucci has designated Defendant McGrath as the official responsible for placing individuals on post-release supervision in an RTF pursuant to Correction Law § 73. 680. DOCCS has claimed the authority to place people on RTF status in state prisons indefinitely. 681. Named Plaintiff D.R., who was assigned to RTF status under the Correction Law, for example, received a memorandum from Defendant McGrath explaining the indefinite nature of this placement:
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Since an approved residence has not yet been identified, I am invoking my authority as Associate Commissioner of the New York State Department of Corrections & Community Supervision (DOCCS) under section 73(10) of the Correction Law. Pursuant to such authority, you will remain in a Residential Treatment Facility until such time as you have proposed and DOCCS has approved a suitable residence. 682. While Defendants employ euphemistic terms to describe RTF placements, the reality for RTF Subclass members is that they never left prison. 683. Defendants treat members of the RTF Subclass as inmates and subject them to punitive conditions just as if they were serving a prison sentence. 684. DOCCS does not use community-based “residential treatment facilities” to house Plaintiffs. 685. Further, there are no separate “RTF” units within state prisons that are used to house Plaintiffs and that meet the state law definition in Correction Law § 2. 686. Since 2016, all RTF Subclass members assigned to an RTF were held in either medium or maximum security facilities. 687. The majority of the RTF Subclass are incarcerated at Green Haven Correctional Facility (a maximum-security prison) and Fishkill Correctional Facility (a medium-security prison) because these facilities are used to incarcerate individuals with serious mental illness. 688. Plaintiffs suffer severe psychological and emotional harms as a result of their de facto incarceration while on RTF status in state prison. 689. After learning they will be held past their maximum expiration date for an indefinite period, members of the RTF Subclass have attempted suicide and expressed suicidal intentions, engaged in self-harm, experienced depression and hopelessness, and have suffered exacerbated symptoms of their mental illnesses. 690. RTF Subclass members have spent months or even more than one year in state prisons before being released to the community.
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691. For example, Plaintiff C.J. spent over 16 months in state prison past his maximum expiration date.
692. Plaintiffs need not be incarcerated. Defendants employ other substantially less restrictive methods that would allow for Plaintiffs’ re-entry into the community and support Plaintiffs in integrated independent settings.
693. These methods include housing combined with supports and services, such as ACT, FACT, and mobile crisis services, which already exist but have not been adequately developed or administered by Defendants.
694. Defendants have placed members of the RTF Subclass in a limbo over which they have no control. At the end of their maximum sentence, these individuals are “released” to serve a period of community supervision in a state prison solely because they have a disability and require an approved OMH community-based housing placement and supports that do not exist.
CLASS ALLEGATIONS 695. Plaintiffs properly maintain this action as a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure on behalf of themselves and similarly situated individuals in the General Class, RTF Subclass, and the Discharge Class. 696. The General Class consists of all persons (1) housed or who will be housed in a state prison, (2) with serious mental illness, (3) whose open dates for parole release, approved conditional release dates, or maximum expiration dates have passed, (4) who are not subject to residency restrictions under the Sexual Assault Reform Act, and (5) who are appropriate for integrated, community-based housing programs. 697. Plaintiffs also maintain this action on behalf of a subclass comprising members of the General Class whom Defendants incarcerate past their maximum expiration date in
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“residential treatment facilities” pursuant to Penal Law § 70.45 or Correction Law § 73. Specifically, the RTF Subclass consists of all persons (1) housed or who will be housed in a state prison pursuant to Penal Law § 70.45 or Correction Law § 73, (2) who have serious mental illness, (3) whose maximum expiration dates have passed, (4) who are not subject to residency restrictions under the Sexual Assault Reform Act, and (5) who are appropriate for integrated, community-based housing programs.
698. In addition, Plaintiffs maintain this action on behalf of a class of individuals who, upon their release from prison, are deprived of the community-based mental health housing and supportive services that will allow them to live in integrated settings. The Discharge Class consists of all persons (1) with serious mental illness, (2) who are or will be appropriate for and desire community-based mental health housing and supportive services upon their release from state prison, (3) who, upon their release, do not receive such services, and (4) who reside in segregated setting or who are at serious risk of becoming institutionalized.
699. The General Class, the RTF Subclass, and the Discharge Class are each sufficiently numerous such that joinder of all members is impracticable. Each year, thousands of individuals receiving mental health treatment are discharged from prison, with hundreds requiring community-based mental health housing upon release. Defendants have held at least 82 people with serious mental illness on RTF status since 2016 and, as of August 2019, 155 people were held past approved conditional release dates or open dates for parole release for reasons other than SARA housing restrictions, and 29 people with serious mental illness were incarcerated past their release dates with applications pending for mental health housing. Each year, Defendants release hundreds of individuals with serious mental illness to homeless shelters, motels or hotels, DOCCS parole housing, or state-operated, segregated facilities such as
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Transitional Living Residences without the integrated, community-based mental health housing and supportive services for which they are eligible.
700. The compositions of the General Class, the RTF Subclass, and the Discharge Class are necessarily fluid as Defendants discharge Plaintiffs from prison at their discretion, new Plaintiffs enter each class as their release dates pass, and Plaintiffs released from prison cycle through a series of inappropriate discharge locations, segregated settings, and reincarceration.
701. Moreover, joinder is impracticable as members of the General Class, the RTF Subclass, and the Discharge Class are geographically diverse, placed in prisons, or otherwise reside in cities and towns across the state, and their incarceration, criminal justice histories, DOCCS community supervision restrictions, mental illness, and lack of financial resources make bringing individual suits nearly impossible.
702. Among other relief, Plaintiffs seek prospective injunctive relief on behalf of future, unknown General Class, RTF Subclass, and Discharge Class members, further making joinder impracticable.
703. Plaintiffs raise questions of fact and law that are common to each of the General Class, RTF Subclass, and Discharge Class.
704. Common questions raised as to the General Class include, but are not limited to: a. Whether Defendants institutionalize in prison individuals with serious mental illness to address their housing needs, rather than provide appropriate residential placements and services in more integrated community settings; b. Whether Defendants fail to provide, fund, and effectively utilize communitybased mental health housing programs and services so that persons with serious mental illness who have been approved for discharge from state prisons may be placed in more integrated community settings; c. Whether Defendants’ failure to provide programs, services, and supports in more integrated community settings violates the integration mandate of the Americans with Disabilities Act and the Rehabilitation Act; and
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d. Whether Plaintiffs are entitled to declaratory and injunctive relief to vindicate their statutory rights.
705. Common questions raised as to the RTF Subclass additionally include, but are not
limited to:
a. Whether Defendants have a policy or practice of housing individuals with serious mental illness past their maximum expiration dates;
b. Whether Defendants have a policy or practice of subjecting members of the RTF Subclass to punitive conditions in state prison;
c. Whether Defendants have a policy or practice of criminalizing RTF Subclass members’ status as individuals with serious mental illness who are homeless or at risk of homelessness by punishing them with prison confinement;
d. Whether Defendants’ actions and inaction violate the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution; and
e. Whether Plaintiffs are entitled to declaratory and injunctive relief to vindicate their constitutional rights.
706. Common questions raised as to the Discharge Class include, but are not limited
to:
a. Whether Defendants segregate and institutionalize, or place at serious risk of segregation and institutionalization, individuals with serious mental illness who are released from prison, rather than provide appropriate mental health housing, programs and supportive services in integrated community settings;
b. Whether Defendants fail to provide, fund, and effectively utilize communitybased mental health housing programs and supportive services so that persons with serious mental illness who are discharged from state prisons may be placed in integrated community settings;
c. Whether Defendants administer their mental health system in a manner that discriminates against people with serious mental illness who are released from prison;
d. Whether Defendants’ failure to provide programs, services, and supports in integrated community settings violates the integration mandate of the Americans with Disabilities Act and the Rehabilitation Act; and
e. Whether Plaintiffs are entitled to declaratory and injunctive relief to vindicate their statutory rights.
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707. The Named Plaintiffs’ claims are typical of the General Class, the RTF Subclass, and the Discharge Class. Their claims arise from the same policies and practices as the proposed class and subclass, respectively, and are based on the same legal theories.
708. The Named Plaintiffs are capable of fairly and adequately protecting the interests of the General Class, the RTF Subclass, and the Discharge Class. There are no conflicts that exist among the Named Plaintiffs and members of any class.
709. Plaintiffs are represented by attorneys employed by Disability Rights New York, the Prisoners’ Rights Project of The Legal Aid Society, and Paul, Weiss, Rifkind, Wharton and Garrison LLP. The undersigned counsel has ample experience in litigating complex litigation, including class actions and civil rights cases, in particular involving the rights of people with mental illness and incarcerated people.
710. Defendants have acted and refused to act on grounds generally applicable to the General Class, the RTF Subclass, and the Discharge Class. Injunctive and declaratory relief is appropriate respecting the class and subclass as a whole.
FIRST CAUSE OF ACTION (Americans with Disabilities Act by Plaintiffs M.G., P.C., C.J., M.J., J.R., D.R. and the
General Class against All Defendants) 711. Title II of the ADA prohibits Defendants from discriminating against individuals with disabilities in programs and services. 42 U.S.C. § 12132. 712. Title II also requires that “[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). 713. Plaintiffs are individuals with serious mental illness. They have mental impairments that substantially limit one or more major life activity.
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714. Plaintiffs are qualified individuals with disabilities within the meaning of 42 U.S.C. § 12131(2) and 28 C.F.R. § 35.104.
715. Plaintiffs are qualified to receive services in more integrated community-based settings that meet their mental health needs.
716. Serving Plaintiffs in the most integrated settings appropriate to their needs can be reasonably accommodated and would not fundamentally alter Defendants’ programs and services.
717. Defendants DOCCS and OMH are public entities covered by Title II of the ADA. 42 U.S.C. § 12131(1)(A) and (B).
718. Defendants Cuomo, Annucci, Sullivan, and McGrath are responsible for the operation of public entities covered by Title II of the ADA. 42 U.S.C. §§ 12131(1)(A) and (B).
719. Defendants are obligated under the ADA to administer state programs in a manner that enables Plaintiffs to receive services in the most integrated setting appropriate to their needs.
720. Defendants have failed to meet this obligation. Defendants have caused Plaintiffs to be institutionalized and segregated in state prisons, rather than provide adequate residential placements in the most integrated setting appropriate to their needs.
721. Defendants’ actions and inactions constitute discrimination in violation of Title II of the ADA, 42 U.S.C. § 12132.
SECOND CAUSE OF ACTION (Rehabilitation Act by Plaintiffs M.G., P.C., C.J., M.J., J.R., D.R. and the General Class
against All Defendants) 722. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, provides:
No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be the denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .
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723. Section 504 also requires that: For purposes of this part, aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for handicapped and nonhandicapped persons, but must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person’s needs.
45 C.F.R. § 84.4(b)(2). 724. Plaintiffs are individuals with serious mental illness. They have mental
impairments that substantially limit one or more major life activity. 725. Plaintiffs are qualified individuals with disabilities within the meaning of 29
U.S.C. § 705(20) and 45 C.F.R. § 84.3(1). 726. Plaintiffs are qualified to participate in and receive services in more integrated
settings appropriate to their needs. 727. Defendants can reasonably accommodate Plaintiffs in the most integrated settings
appropriate to their needs. 728. Defendants DOCCS and OMH are programs and conduct activities which receive
federal financial assistance. 729. Defendants Cuomo, Annucci, Sullivan, and McGrath are responsible for programs
and activities receiving federal financial assistance. 730. Defendants are obligated under Section 504 to administer programs and services
for individuals with mental illness that provide the opportunity to receive services in the most integrated setting appropriate to their needs.
731. Defendants have failed to meet this obligation. Defendants’ unlawful activities and omissions have caused Plaintiffs to receive programs and services in the institutionalized and
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segregated setting of state prisons, rather than the most integrated setting appropriate to their needs.
732. Defendants’ failure to administer services, programs, and activities in the most integrated setting appropriate to the needs of Plaintiffs constitutes discrimination in violation of Section 504.
THIRD CAUSE OF ACTION (42 U.S.C. § 1983: Substantive Due Process by Plaintiffs C.J., M.J., J.R., D.R. and
the RTF Subclass against Defendants Annucci, Sullivan, and McGrath) 733. The Fourteenth Amendment protects against government conduct that infringes on fundamental rights and liberties. U.S. Const. amend. XIV. 734. Members of the RTF Subclass have fundamental liberty interests protected by the Due Process Clause that include, but are not limited to, freedom from bodily restraint and release from prison upon serving the maximum term of their court-imposed prison sentence. 735. Defendants have a policy and practice that deprives members of the RTF Subclass of their fundamental liberty interests by incarcerating them in state prisons following their maximum expiration dates, without court order, and by subjecting them to punitive conditions of confinement. 736. Defendants are deliberately indifferent to Plaintiffs’ indefinite detention in punitive conditions past their maximum expiration date. 737. Defendants assign RTF Subclass members to state prison while on RTF status, and subject them to punishment, despite the fact that they know, or should know, that these individuals require mental health housing, that there is an inadequate capacity in communitybased mental health housing programs, that their maximum expiration dates have passed, and that the legal authority to hold them in punitive conditions has ended. This conduct is not
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narrowly tailored to serve any compelling state interest, nor is it reasonably and necessarily related to any legitimate penological interest.
738. Plaintiffs’ continued incarceration in punitive conditions shocks the contemporary conscience.
FOURTH CAUSE OF ACTION (42 U.S.C. § 1983: Eighth Amendment by Plaintiffs C.J., M.J., J.R., D.R. and the RTF
Subclass against Defendants Annucci, Sullivan, and McGrath) 739. The Eighth Amendment, as applied to states through the Fourteenth Amendment, prohibits the imposition of cruel and unusual punishment by incarcerating individuals past their prison sentence and by criminalizing their status. U.S. Const. amend. VIII. 740. Defendants have a policy and practice of confining members of the RTF Subclass in state prisons, in punitive conditions, for significant periods of time past their maximum expiration dates because of a lack of adequate housing in the community. 741. Defendants are deliberately indifferent to Plaintiffs’ indefinite detention in punitive conditions past their maximum expiration date. 742. Plaintiffs’ prolonged incarceration results from Defendants’ policy and practice of assigning individuals with serious mental illness to state prison pursuant to Penal Law § 70.45 or Correction Law § 73 and, while in these prisons, subjecting them to the same punitive conditions as if they were serving a prison sentence. 743. Defendants know that members of the RTF Subclass remain in prison past their maximum expiration date due to a lack of mental health housing and that they are suffering unwarranted punishment. Defendants have failed to address this unconstitutional practice.
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744. Defendants subject RTF Subclass members to cruel and unusual punishment by criminalizing their status as individuals with serious mental illness who are homeless or at risk of homelessness.
745. Defendants criminalize RTF Subclass members’ inability to secure the community-based mental health housing that Defendants impose as a precondition for release and which Defendants have not made available.
746. By imposing prison confinement solely because RTF Subclass members cannot satisfy a precondition for release that is involuntary and inseparable from their status, Defendants criminalize RTF subclass members’ status.
FIFTH CAUSE OF ACTION (Americans with Disabilities Act by Plaintiffs S.D., W.P., D.H. and the Discharge Class
against Defendants Cuomo, Annucci, Sullivan, DOCCS and OMH) 752. Title II of the ADA prohibits Defendants from discriminating against individuals with disabilities in programs and services. 42 U.S.C. § 12132. 753. Title II also requires that “[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). 754. Plaintiffs are individuals with serious mental illness. They have mental impairments that substantially limit one or more major life activity. 755. Plaintiffs are qualified individuals with disabilities within the meaning of 42 U.S.C. § 12131(2) and 28 C.F.R. § 35.104. 756. Plaintiffs are qualified to receive services in more integrated community-based settings that meet their mental health needs.
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757. Serving Plaintiffs in the most integrated settings appropriate to their needs can be reasonably accommodated and would not fundamentally alter Defendants’ programs and services.
758. Defendants DOCCS and OMH are public entities covered by Title II of the ADA. 42 U.S.C. § 12131(1)(A) and (B).
759. Defendants Cuomo, Annucci, and Sullivan are responsible for the operation of public entities covered by Title II of the ADA. 42 U.S.C. §§ 12131(1)(A) and (B).
760. Defendants are obligated under the ADA to administer services, programs, and activities in a manner that enables Plaintiffs to receive services in the most integrated setting appropriate to their needs.
761. Defendants have failed to meet this obligation. 762. Defendants have discriminated against Plaintiffs by needlessly placing Plaintiffs in segregated settings to receive necessary mental health housing and services, or by putting Plaintiffs at serious risk of placement in such segregated settings. 747. Defendants’ actions and inactions constitute discrimination in violation of Title II of the ADA, 42 U.S.C. § 12132.
SIXTH CAUSE OF ACTION (Rehabilitation Act by Plaintiffs S.D., W.P., D.H. and the Discharge Class against
Defendants Cuomo, Annucci, Sullivan, DOCCS, and OMH) 763. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, provides:
No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be the denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . . 764. Section 504 also requires that:
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For purposes of this part, aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for handicapped and nonhandicapped persons, but must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person’s needs. 45 C.F.R. § 84.4(b)(2). 765. Plaintiffs are individuals with serious mental illness. They have mental impairments that substantially limit one or more major life activity. 766. Plaintiffs are qualified individuals with disabilities within the meaning of 29 U.S.C. § 705(20) and 45 C.F.R. § 84.3(1). 767. Plaintiffs are qualified to participate in and receive services in more integrated settings appropriate to their needs. 768. Defendants can reasonably accommodate Plaintiffs in the most integrated settings appropriate to their needs. 769. Defendants DOCCS and OMH are programs and conduct activities which receive federal financial assistance. 770. Defendants Cuomo, Annucci, and Sullivan are responsible for programs and activities receiving federal financial assistance. 771. Defendants are obligated under Section 504 to administer programs and services for individuals with mental illness that provide the opportunity to receive services in the most integrated setting appropriate to their needs. 772. Defendants have failed to meet this obligation. 773. Defendants’ unlawful activities and omissions have caused Plaintiffs to be needlessly placed in segregated settings to receive necessary mental health housing and
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supportive services, or have placed Plaintiffs at serious risk of placement in such segregated
settings.
774. Defendants’ failure to administer services, programs, and activities in the most
integrated setting appropriate to the needs of Plaintiffs constitutes discrimination in violation of
Section 504.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
a) Certify, pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure:
i. A General Class defined as: All persons (1) housed or who will be housed in a state prison, (2) with serious mental illness, (3) whose open dates for parole release, approved conditional release dates, or maximum expiration dates have passed, (4) who are not subject to residency restrictions under the Sexual Assault Reform Act, and (5) who are appropriate for integrated, community-based housing programs; and
ii. An RTF Subclass defined as: All persons (1) housed or who will be housed in a state prison pursuant to Penal Law § 70.45 or Correction Law § 73, (2) who have serious mental illness, (3) whose maximum expiration dates have passed, (4) who are not subject to residency restrictions under the Sexual Assault Reform Act, and (5) who are appropriate for integrated, community-based housing programs; and
iii. A Discharge Class defined as: All persons (1) with serious mental illness, (2) who are or will be appropriate for and desire community-based mental health housing and supportive services upon their release from state prison, (3) who, upon their release, do not receive such services, and (4) who reside in a segregated setting or who are at serious risk of becoming institutionalized.
b) Appoint the undersigned as class counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure.
c) Pursuant to Rule 57 of the Federal Rules of Civil Procedure, enter an order declaring Defendants’ conduct as alleged herein unconstitutional and unlawful under the Eighth and/or Fourteenth Amendments to the U.S. Constitution, the Americans with Disabilities Act, and the Rehabilitation Act.
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d) Enter a permanent injunction requiring Defendants to promptly take the following steps that are necessary to serve Plaintiffs in the most integrated setting appropriate to their needs: i. Developing and implementing an effective plan for providing care and treatment in the most integrated setting appropriate to the needs of individuals with serious mental illness who are being discharged from state prison, who are qualified to receive mental health services in integrated settings, and who want mental health services in a more integrated setting; and ii. Promptly making available sufficient community-based care and treatment opportunities, including OMH-funded mental health housing, to ensure that the most integrated appropriate care and treatment is provided without undue delay to those qualified individuals being discharged from state prison who want community-based care and treatment.
e) Enjoin Defendants Annucci, Sullivan, and McGrath from subjecting the RTF Subclass to punitive conditions in state prison.
f) Award reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, 42 U.S.C. § 12205, 29 U.S.C. § 794a, and other applicable law.
g) Order such other relief as the Court deems appropriate.
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Dated: August 27, 2020 New York, New York

DISABILITY RIGHTS NEW YORK
/s/ Elena Landriscina
Elena Landriscina (elena.landriscina@drny.org) Joshua Rosenthal (joshua.rosenthal@drny.org) 25 Chapel Street, Suite 1005 Brooklyn, New York 11201 (518) 432-7861
The LEGAL AID SOCIETY Janet E. Sabel, Attorney-in-Charge
/s/ Stefen R. Short
Stefen R. Short (sshort@legal-aid.org) Robert M. Quackenbush (rquackenbush@legalaid.org) Veronica Vela (vvela@legal-aid.org) Prisoners’ Rights Project 199 Water Street, 6th Floor New York, New York 10038 (212) 577-3530
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
/s/ Walter G. Ricciardi
Walter G. Ricciardi (wricciardi@paulweiss.com) Emily A. Vance (evance@paulweiss.com) Sam Margolis (smargolis@paulweiss.com) 1285 Avenue of the Americas New York, New York 10019 (212) 373-3350
Attorneys for Plaintiffs
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 1

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
2 -----------------------------------x

3 M.G. et al,

4

Plaintiff,

5

-against-

6 ANDREW CUOMO, et al,

7:19-cv-00639-CS-LMS BENCH RULING VIA TELECONFERENCE

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Defendants.

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United States Courthouse

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White Plains, New York

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September 25, 2020

11 B e f o r e:
12 13

HONORABLE JUDGE CATHY SEIBEL, United States District Judge

14 A P P E A R A N C E S:

15 PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP

Attorney for Plaintiff M.G.

16

1285 Avenue of the Americas

New York, New York 10019

17 BY: WALTER G. RICCIARDI

EMILY A. VANCE

18

19 THE LEGAL AID SOCIETY

Attorney for Plaintiff M.G.

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199 Water Street

New York, New York 10038

21 BY: ELENA MARIA LANDRISCINA

STEFEN RUSSELL SHORT

22

DISABILITY RIGHTS NEW YORK

23

Attorney for Plaintiff M.G.

25 Chapel Street - Suite 1005

24

Brooklyn, New York 11201

BY: JOSHUA MORRIS ROSENTHAL

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Angela (Angie) Shaw-Crockett, CCR, CRR, RMR Official Court Reporter (914)390-4242

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1 T E L E C O N F E R E N C E A P P E A R A N C E S: (CONT'D)

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3 NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL

Attorney for Defendant ANDREW CUOMO

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28 Liberty Street - 15th Floor

New York, New York 10005

5 BY: JANE R. GOLDBERG

ADAM SANSOLO

6

JEB HARBEN

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Angela (Angie) Shaw-Crockett, CCR, CRR, RMR Official Court Reporter (914)390-4242

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PROCEEDINGS

2

THE DEPUTY CLERK: M.G. et al v. Cuomo, et al.

3

THE COURT: All right. Good afternoon, everyone.

4

I apologize for keeping you waiting. I just

5 extricated myself from a Zoom meeting.

6

Let me remind counsel if you're going to say

7 anything, the first word out of your mouth must be your last

8 name. Please don't say "This is Elena Landriscina for

9 Plaintiff." Just say "Landriscina." Don't worry about

10 sounding brusque or impolite. We have a court reporter and

11 it's very important that she knows right up front who is

12 speaking. In fact, if you don't start by saying your last

13 name, she'll probably interrupt you and what you say will be

14 lost. So please, it doesn't come naturally, I know, but please

15 try to do that.

16

I have spent quality time with the motion papers.

17 I'm going to ask a question. If you don't ask have an answer,

18 just stay silent. If you do, say your last name and pipe up.

19

Does anybody have anything to add that's not covered

20 by the motion papers? Okay.

21

Let me tell you where I come out and also I want to

22 put on the record before we start, one of the lawyers on the

23 Plaintiffs' team who is a former law clerk of mine is getting

24 married imminently and I will be performing the ceremony. I

25 just wanted everybody to be aware of that.

Angela (Angie) Shaw-Crockett, CCR, CRR, RMR Official Court Reporter (914)390-4242

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1

The motion before me is Defendants' motion to dismiss

2 the first amended class action complaint, which I'm going to

3 call the FAC.

4

Because this case has been the subject of lots of

5 briefing and argument and lots of paper, I'm -- rather than

6 taking time to summarize what's in the FAC, I'm going to assume

7 the parties' familiarity with factual record. In summary

8 fashion, Plaintiffs are individuals with serious mental illness

9 who are indigents. They originally brought this lawsuit to

10 challenge their institutionalization in New York's prison

11 system.

12

The defendants includes Governor Andrew Cuomo in his

13 official capacity; the New York State Office of Mental Health,

14 or OMH; Commissioner Ann Marie Sullivan in her official

15 capacity; the Department of Corrections and Community

16 Supervision, or DOCCS; Commissioner Anthony Annucci in his

17 official capacity, actually acting commissioner; and Ann Marie

18 McGrath in her official capacity as DOCCS. Plaintiffs allege

19 that defendants held them in prison past their lawful release

20 dates due to their failure to make available the

21 community-based housing and supportive services Plaintiffs

22 require upon relief.

23

Plaintiffs purport to represent two classes. A

24 general class of people with serious mental illness who

25 defendants hold in secure prisons past their release dates,

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5

1 including the end of their prison sentences, their approved

2 conditional release dates and their open dates for parole

3 release due to the inadequate capacity of community-based

4 mental health housing programs. And a second class called the

5 RTF Subclass. "RTF" stands for Residential Treatment Facility.

6 The RTF Subclass is general class members who have been

7 incarcerated past the maximum expiration dates of their

8 court-imposed prison sentences. Plaintiffs allege that the

9 RTFs where they are held are prisons where they are treated

10 just like prisoners.

11

The plaintiffs filed their original complaint on

12 January 23, 2019. We had a conference in May. I gave

13 Plaintiffs leave to amend. They filed the FAC on June 3rd. On

14 August 2nd of last year I referred the case to Magistrate Judge

15 Smith for general pretrial supervision. The parties bundled

16 their motion papers, so the defendants filed this motion, which

17 is Docket Entry 79. Their supporting memorandum of law, which

18 is Docket Entry 80, which I'm going to call defendant's memo,

19 as well their reply memorandum, Docket Entry 90, which I'm

20 going to call Defendants' Reply, at the same time as Plaintiffs

21 filed their opposition, Docket Entry 82, which I'm going to

22 call Plaintiffs' memo. And that was all on December 16.

23

Both parties also filed attorney declarations

24 attaching various documents. And the named Plaintiffs also

25 filed sworn declarations which are found at Docket Entries 81,

Angela (Angie) Shaw-Crockett, CCR, CRR, RMR Official Court Reporter (914)390-4242

6

1 83 through 89, 114, 115, 117 and 121. Defendants filed sworn

2 declarations from OMH and DOCCS's staff at Docket Entry 91 and

3 92. And both parties filed sur-replies in March of this year.

4 Plaintiffs' sur-reply is 113 and Defendants is 120.

5

Then on August 10 of this year, Plaintiffs requested

6 a pre-motion conference with Judge Smith in anticipation of

7 amending the FAC, principally to add a "Discharge Class" of

8 Plaintiffs who are unnecessarily placed in segregated settings

9 or put at risk of institutionalization upon their discharge

10 from prison.

11

In their letter, which is Docket Entry 125, Plaintiff

12 explained that, quote, the proposed amendment would not impact

13 the Court's resolution of the pending motion to dismiss,

14 unquote. That's at page 2. After a conference, Judge Smith

15 issued an opinion and order, which is Docket Entry 133, and

16 allowed Plaintiffs to file the Second Amended Complaint, or

17 SAC, which is Docket Entry 134.

18

She noted in her decision at page 10, as follows:

19 Quote, Contrary to Plaintiffs' assertions, the new claims do

20 appear to change the tenor of the case. For example, the

21 addition of the proposed named Plaintiffs as the Discharge

22 Class expands the focus of the dispute from persons being held

23 in prison past their release dates due to their severe mental

24 illness to persons with severe mental illness denied

25 community-based housing in the most integrated setting

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7

1 appropriate to their needs and/or who face a substantial risk

2 of institutionalization.

3

Judge Smith also explained, based on her reading of

4 the SAC, that Plaintiffs also add facts to the pleadings which

5 do not specifically relate to the Discharge Class or which

6 include allegations about the previously named Plaintiffs under

7 sections nominally related to the Discharge Class which may

8 affect the Court's decision on Defendants' motion to dismiss.

9 That's also at page 10.

10

Accordingly, while this motion has been pending for

11 some time, I have to examine whether it would still be

12 appropriate for me to rule on the arguments the parties have

13 briefed or if those arguments are affected by the SAC in such a

14 way that they require more briefing and are better reserved for

15 a future motion to dismiss or for summary judgment. So I'll

16 touch on that as we go along.

17

But let me tell you where I come out. I assume

18 you're all going to be ordering the transcript. If you're not,

19 you'll want to take detailed notes and do make yourself

20 comfortable because this is going to take a while.

21

The first I'm going to address is Subject Matter

22 Jurisdiction: I have subject matter jurisdiction over cause of

23 action only when I have authority to adjudicate the cause

24 pressed in the complaint. Arar v. Ashcroft, 532 F.3d 157, 168.

25 Reversed en banc on other grounds, 585 F.3d 559.

Angela (Angie) Shaw-Crockett, CCR, CRR, RMR Official Court Reporter (914)390-4242

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1

Quote, Determining the existence of subject matter

2 jurisdiction is a threshold inquiry, and a claim properly

3 dismissed for lack of subject matter jurisdiction under Rule

4 12(b)(1) when district courts lacks the statutory or

5 constitutional power to adjudicate it, unquote, RR at 168.

6

That case goes on to say, quote, When jurisdiction is

7 challenged, the Plaintiff bears the burden of showing by a

8 preponderance of the evidence that subject matter jurisdiction

9 exists and the district court may examine evidence outside of

10 the pleadings to make this determination.

11

Quote, the Court must take all facts alleged in the

12 complaint as true and draw all reasonable inferences in favor

13 of Plaintiff, but jurisdiction must be shown affirmatively and

14 that showing is not made by drawing from the pleadings

15 inferences favorable to the party asserting it, unquote.

16 Morrison v. National Australian Bank, 547 F.3d, 160, 170.

17 Affirmed on other grounds, 561 U.S. 247.

18

When a Defendant moves to dismiss both for lack of

19 subject matter jurisdiction and on other grounds such as

20 failure to state a claim, the Court must address the issue of

21 subject matter jurisdiction first. See Rhulen Agency v.

22 Alabama Insurance, 896 F.2d 674, 678. I won't take the time to

23 recite the standards applicable to a motion to dismiss for

24 failure to state the claim. Everybody is familiar with the

25 standards of Iqbal, 556 U.S. 662 and Twombly 550 U.S. 544.

Angela (Angie) Shaw-Crockett, CCR, CRR, RMR Official Court Reporter (914)390-4242

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1

Where matters outside the pleading are presented on a

2 12(b)(6) motion and not excluded, the motion must be treated as

3 one for summary judgment under Rule 56. See Rule 12(d). The

4 requirement of conversion is mandatory and unless the

5 additional materials are excluded, the portion of the

6 Defendants' motion that relies on those materials in connection

7 with Rule 12(b)(6) must be treated as a summary judgment

8 motion. Global Network v. City of New York, 458 F.3d 150, 155.

9 The Court, obviously, only grants summary judgment when

10 resolving all ambiguities and join all permissible factual

11 inferences in favor of the party against whom summary judgment

12 is sought. The moving party shows no genuine dispute as

13 material fact -- as to any material fact and that the moving

14 party is entitled to judgment as a matter of law. See Rule

15 56(a) in Holcomb v. Iona College, 521 F.3d 130, 137. So those

16 are the general legal standards.

17

I turn first to the issue of Governor Cuomo as

18 Defendant: Federal courts are permitted under Ex parte Young,

19 209 U.S. 123, to grant prospective injunctive relief against

20 state officials "to prevent a continuing violation of federal

21 law." Green v. Mansour, 474 U.S. 64, 68. See Verizon Maryland

22 v. Public Service Commission of Maryland, 535 U.S. 635, 645 to

23 48.

24

For a specific state official to be a proper

25 Defendant for injunctive relief under the Ex parte Young

Angela (Angie) Shaw-Crockett, CCR, CRR, RMR Official Court Reporter (914)390-4242

10

1 doctrine, the state official, quote, must have some connection

2 with the enforcement of the act, unquote. In re Dairy Mart

3 Convenience Stores, 411 F.3d 367, 372 to 373. Plaintiffs

4 oversimplify the standard by stating that all Ex parte Young

5 requires is, quote, some connection, unquote, between the

6 governor and the violation of federal law. That's in

7 Plaintiffs' memo at 22 to 23. By omitting the phrase, quote,

8 with the enforcement, unquote, they propose a significantly

9 broader and more tenuous connection than set forth in Dairy

10 Mart. The quote, official against whom the action is brought

11 must have a direct connection to or responsibility for the

12 alleged action, unquote. Davidson v. Scully, 148 F. Supp.2d

13 249, 254, (S.D.N.Y. 2001). See CSX v. New York State, 306 F.3d

14 87, 99 and Jackson v. Connecticut, 2019 Westlaw 2193464, at

15 page 4, (District of Connecticut May 21, 2019.)

16

Let me ask everybody to put themselves on mute,

17 because I'm getting a lot of background and beeping and things

18 like that. And I think if it's distracting me, it's probably

19 distracting the court reporter.

20

So as I said, I'm going to be talking for a long

21 time, so if everybody else could please mute. Continuing on

22 now.

23

A mere recitation of an official's

24 responsibilities -- does anybody know what that beeping is?

25 All right. Let me go on.

Angela (Angie) Shaw-Crockett, CCR, CRR, RMR Official Court Reporter (914)390-4242

11

1

That is really distracting. Walter, do you know what

2 that is?

3

MR. RICCIARDI: I have no idea.

4

THE COURT: I'm talking to Walter Clark. Maybe he's

5 left us. One hundred percent of the people on this call have

6 to be on mute. If anybody doesn't know how to mute -- hold on,

7 let me find out.

8

Maybe my law clerk knows. Ryan, do you know?

9

THE LAW CLERK: No, I'm not sure. Walter usually has

10 it pulled up on his computer where he can mute everybody.

11

THE COURT: Hold on one second. I'm going to walk in

12 there and see if I can get him to mute it. Hold on.

13

He's stepped out. I think he'll be able to mute

14 everybody. But hopefully the beeping has stopped. When he

15 comes back, my other law clerk will let him know.

16

Somebody is not muted right now because I can hear

17 noise. I wish I knew how to tell you how to mute. Maybe

18 somebody who is successfully can unmute. Ryan, my law clerk,

19 how did you mute yourself?

20

THE LAW CLERK: I'm on my cell phone. Just a button

21 that says "mute."

22

THE COURT: So you did it on your phone. You didn't

23 do it through this AT&T system like star seven or something

24 like that?

25

THE LAW CLERK: Right.

Angela (Angie) Shaw-Crockett, CCR, CRR, RMR Official Court Reporter (914)390-4242

12

1

THE COURT: All right. I know there's way to do it,

2 but I don't know what it is.

3

All right. I'm going to press on and it's going to

4 be -- that beeping is so annoying. Okay. I'm pressing on.

5

Okay. Whoever is in the car, we really don't want to

6 listen to Waze or Google Maps or whatever that is. You should

7 be able to mute the call via your cell phone. Okay.

8

A mere recitation of an official's responsibilities

9 to safely execute the law is an insufficient basis to permit a

10 suit to go forward against that official because, quote, the

11 proper Defendants are the government officials charged with the

12 administration and enforcement, unquote, of the purported

13 illegal conduct. Curtis v Pataki, 1997 Westlaw 614285 at page

14 6 (Northern District October 1, 1997); See Pugh v. Goord, 571

15 F. Supp.2d 477, 517 to 18 (S.D.N.Y. 2008).

16

When the governor of a state is named as a Defendant,

17 district courts in this circuit have often found an

18 insufficient enforcement connection between the governor and

19 the complained-of conduct, and that other state officials are

20 more appropriate Defendants. See Disability Rights New York v.

21 New York State, 2019 Westlaw 2497907 at pages 23 to 24,

22 (Eastern District June 14, 2019).

23

Governors are usually dismissed as a Defendant when

24 they lack direct involvement in the enforcement of the alleged

25 illegal conduct. See, for example, Spiteri v. Russo, 2013

Angela (Angie) Shaw-Crockett, CCR, CRR, RMR Official Court Reporter (914)390-4242

13

1 Westlaw 4806960 at page 18, (Eastern District September 7,

2 2013), affirmed 622 F. App. 9. There the governor had no

3 direct involvement in Plaintiffs' classification as a sex

4 offender. Also see Nolan v. Cuomo, 2013 Westlaw 168674 at page

5 9, (Eastern District January 16, 2013), which held that the

6 governor's duty to ensure that the law is enforced is not

7 sufficient to make him a proper party, and Curtis at page 6,

8 where in a suit against the DOCCS commissioner and the

9 governor, only the DOCCS commissioner was a proper Defendant.

10

By failing to show how Governor Cuomo has a

11 connection to the enforcement of the challenged conduct at

12 issue here, Plaintiffs have fallen short of what the law

13 requires. They argue that they have alleged sufficient, quote,

14 active involvement, unquote, by the governor to withstand a

15 motion to dismiss by describing his efforts to, quote, address

16 the putative class's community-based housing needs, unquote.

17 That's in their memo at 23. While Plaintiffs are correct, as

18 they say at that same page, that they need not show that the

19 governor was involved in the minutiae of Plaintiffs' discharge

20 plans, they recite only responsibilities attributed to the

21 Governor in the general discharge of his office, such as

22 appointing the leadership of and receiving reports from certain

23 agencies, commissions and cabinets that address issues

24 implicated in this case. See the FAC in paragraph 179 to 87.

25

Plaintiffs fail to allege that the governor had a

Angela (Angie) Shaw-Crockett, CCR, CRR, RMR Official Court Reporter (914)390-4242

14

1 direct enforcement role of any kind in any of the conduct that

2 forms the basis for their lawsuit. While Plaintiffs argue that

3 access to the state's capital budget is necessary for full

4 relief in this case, that is not necessarily so. And in any

5 event, Governor Cuomo shares the responsibility for allocating

6 funds with the assembly and the senate. If this Court were to

7 grant injunctive relief directed at DOCCS and OMH, their

8 compliance would not be excused based on budgetary reasons. So

9 Plaintiffs have not shown that the governor is necessary for

10 full relief, even if it might be he who needs to take the bull

11 by the horns to allocate responsibility among the two agencies

12 if this case is to settle.

13

Plaintiffs rely on out-of-circuit district court

14 cases that are not persuasive here, especially because one

15 in-circuit case they do cite, Nassau & Suffolk County Taxi

16 Owners Association v. State, 336 F.Supp. 3d 50 at 68, 69,

17 (Eastern District 2018), dismissed the governor as a Defendant

18 precisely because he had no enforcement connection to the

19 alleged ongoing violations of federal law. While Disability

20 Advocates v. Patterson, 598 F.Supp. 289, 356, 57 (Eastern

21 District 2009), declined to dismiss the governor in a suit

22 involving claims similar to those in this action, the Court in

23 that case analyzed the governor's status as a party under the

24 far more liberal Rule 21 joinder standard. Here, I find the Ex

25 parte Young analysis controls because Plaintiffs have failed to

Angela (Angie) Shaw-Crockett, CCR, CRR, RMR Official Court Reporter (914)390-4242

15

1 specify Governor Cuomo's enforcement connection to the alleged

2 violations of federal law, he is not a proper Defendant and is

3 dismissed as a party.

4

Ryan, can you do me a favor. Can you text Walter and

5 just ask him what the instructions are for people on the call

6 to mute themselves or if he's able to come back. If they can't

7 do it themselves, if he's able to come back and mute them for

8 me, that would be great.

9

THE LAW CLERK: Will do, Judge. I just want to note

10 if you're on a land line, if you hit Star 6, that should mute

11 yourself.

12

THE COURT: Oh, that's good. All right. Everybody

13 do that.

14

THE LAW CLERK: But I'll text Walter to see if he can

15 do it on his end as well.

16

THE COURT: Maybe that's the way he would say to do

17 it. Okay.

18

Turning now to Eleventh Amendment Immunity: In their

19 initial memorandum of law at pages 17 to 20, Defendants argue

20 that the Eleventh Amendment bars Plaintiffs' claims against

21 DOCCS and OMH under Title II of the Americans with Disabilities

22 Act, or ADA. After Plaintiff served their opposition, however,

23 Defendants changed their position, noting that they, quote,

24 agree with Plaintiffs that the Court need not reach the

25 constitutional argument implicated by the question of sovereign

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16

1 immunity as Plaintiffs have asserted a claim under Section 504

2 of the Rehabilitation Act. That's at page 12 of their reply.

3 The parties appear to be in agreement on this point and -- but

4 out of an abundance of caution, I will examine whether it is,

5 in fact, appropriate for me to put off a ruling on this issue.

6

A state is, quote, immune from suits brought in

7 federal courts by her own citizens as well as by citizens of

8 another state absent that state's consent or a valid abrogation

9 by congress, unquote. Employees of the Department of Public

10 Health & Welfare v. Department of Public Health & Welfare, 411

11 U.S. 279, 280; see Allen v. Cooper, 140 Supreme Court 994,

12 1000, 1001, and Pennhurst v. Halderman, 465 U.S. 89, 100.

13

It is undisputed that OMH and DOCCS are both agencies

14 of New York State, and as such are, quote, entitled to assert

15 the state's Eleventh Amendment immunity where, for practical

16 purposes, the agency is the alterego of the state --

17

All right. So somebody is in a car. That's a car

18 door noise. Whoever you are, mute your cell phone. Sorry.

19

Quote, entitled to assert the state's Eleventh

20 Amendment immunity where, for practical purposes, the agency is

21 the alterego of the state and the state is the real party in

22 interest, unquote. Santiago v. New York State, DOCCS, 945 F.2d

23 25, 28, Note 1. Accordingly, the key question for analysis is

24 whether Congress validly abrogated that immunity under Title II

25 of the ADA.

Angela (Angie) Shaw-Crockett, CCR, CRR, RMR Official Court Reporter (914)390-4242

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1

The Supreme Court's decision United States versus

2 Georgia, 546 U.S. 151, held that the ADA validly abrogates

3 sovereign immunity when a claim includes both a Title II

4 violation and alleged Fourteenth Amendment violation, but left

5 unresolved the question of whether Title II validly abrogates

6 sovereign immunity for a cause of action based on conduct that

7 allegedly violates Title II, but not a specific constitutional

8 provision. See Dean v. University of Buffalo, 804 F.3d 178,

9 194 and Bolmer v. Oliveira, 594 F.3d 134, 148. As such, it is

10 an open question whether sovereign immunity would prohibit a

11 Title II claim against DOCCS and OHM.

12

There's a well-settled policy set by the Supreme

13 Court, however, for federal courts to avoid deciding

14 constitutional questions except where necessary. Blair v.

15 United States, 250 U.S. 273, 279. Quote, Considerations of

16 propriety, as well as long-established practice, demand that

17 courts refrain from passing on the constitutionality of the law

18 unless obliged to do so in the proper performance of our

19 judicial function, where the question is raised by a party

20 whose interest entitles them to raise it, unquote. That's

21 Blair 279. See Lyng v. Northwest Indian Cemetery Protective

22 Association, 485 U.S. 439, 445 to 46, which discussed the

23 quote, fundamental and longstanding principal of judicial

24 restraint that requires courts to avoid reaching constitutional

25 questions in advance of the necessity of deciding them.

Angela (Angie) Shaw-Crockett, CCR, CRR, RMR Official Court Reporter (914)390-4242

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1

Here, Plaintiffs also bring a Rehabilitation Act

2 claim against the state agency Defendants, and the remedies

3 available to Plaintiffs under Title II and the Rehabilitation

4 Act, or RA, are identical. See 42 U.S. Code Section 12133.

5 Further, it's clear that Section 504 constitutes a clear

6 expression of Congress' intent to condition acceptance of

7 federal funds on a state's waiver of its Eleventh Amendment

8 immunity. Garcia V. S.U.N.Y at 113. RA claims are thus not

9 barred by the Eleventh Amendment because New York has waived

10 sovereign immunity as to such claims. Keitt v. New York City,

11 882 F.Supp.2d 412, 425 (Southern District 2011). Defendants do

12 not challenge that the RA claims in this case can proceed

13 without implicating the Eleventh Amendment.

14

Finally, the Second Circuit has indicated that courts

15 should decide whether immunity applies at the pleadings stage

16 particularly where, if successful, quote, the state would be

17 exempted from participating in any pretrial procedures. Smith

18 v. Reagan, 841 F.2d 28, 31. Here as extensive paper discovery

19 has already occurred and as the discovery going forward will be

20 the same regardless of whether it is aimed at the ADA claim or

21 the RA claim, that is not an issue here. See Smith at 30 where

22 the Courts said, quote, The purpose of an early determination

23 of -- sorry. The purpose of early determinations of immunity

24 defenses is, after all, to lift the burdens of litigation from

25 a Defendant who should not be a party at all, unquote.

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1

Accordingly, I need not resolve the sovereign

2 immunity issue at the pleadings stage and agree with the

3 parties that it would be inappropriate to do so. There is no

4 need to decide the constitutionality of Title II's abrogation

5 of sovereign immunity because the rights and remedies under

6 Title II are the same as under the RA, and deciding the

7 immunity question now would not prevent the state defendants

8 from being "haled into court." Smith at 30. See Ross v. CUNY,

9 211 F. Supp. 3d, 518, 528 (E.D.N.Y. 2016). Deciding the issue

10 now will not change the course of this litigation or the

11 ultimate judgment to which Defendants may be subject. T.W. v.

12 New York State Board of Law Examiners, 2019 Westlaw 6034987 at

13 page 3, (Eastern District November 14, 2019). And accordingly,

14 the motion to dismiss the ADA claims against DOCCS and OMH on

15 sovereign immunity grounds is denied.

16

I now discuss the allegedly Redundant Claims:

17 Defendants argue that the ADA and RA claims against Defendants

18 Sullivan, Annucci and McGrath, who are sued in their official

19 capacity, should be dismissed because they're redundant with

20 the claims against the state entities themselves.

21

The Second Circuit recognizes that ADA and RA suits

22 for prospective injunctive relief may proceed against state

23 officers in their official capacities. See Henrietta D. v.

24 Bloomberg, 331 F.3d 261, 289. Because no matter what, quote,

25 the real party in interest in an official-capacity suit is the

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1 government entity. It is irrelevant whether the judgment would

2 impose individual liability on the officer sued since the suit

3 is, in effect, against the public entity, unquote. Harris v.

4 Mills 572 F.3d 66, 72. Plaintiffs may assert ADA claims

5 against institutional Defendants or by naming individuals as

6 Defendants in their representative or official capacities.

7 Duprey v. Prudential, 910 F.Supp. 879, 884 (Northern District

8 1996). A Plaintiff might choose to sue an individual in that

9 person's official capacity rather than a state institution to

10 avoid Eleventh Amendment and sovereign immunity issues.

11 Hallett v. New York State Department of Correctional Services,

12 109 F. Supp.2d 190, 199 to 200 (Southern District 2000).

13

But courts in the circuit will often dismiss official

14 capacity Defendants when the Plaintiff can sue the government

15 entity directly. Candelaria v. Cunningham, 2000 Westlaw 798636

16 at page 3 (Southern District June 20, 2000). See Loadholt v.

17 DOCCS, 2009 Westlaw, 4230132 at page 3 (Western District

18 November 24, 2009). And Hallett 109 F. Supp.2d at 199 to 200.

19 Courts are not required, however, to dismiss these claims

20 against official capacity Defendants as redundant with those

21 against the state agency. See, for example, Askins v. MTA,

22 2020 Westlaw 1082423 at page 7 (Southern District March 5,

23 2020). Maioriello v. New York State OPDD, 2015 Westlaw 5749879

24 at page 19 to 20, (Western District September 30, 2015).

25 Askins v. New York City, 2013 Westlaw 142007 at pages 3 to 5

Angela (Angie) Shaw-Crockett, CCR, CRR, RMR Official Court Reporter (914)390-4242

21

1 (Southern District January 8, 2013.) And Butterfield v.

2 New York, 1998 Westlaw 401533 at pages 16 to 17 (Southern

3 District July 15, 1998). Lastly, courts will typically dismiss

4 claims against the official capacity Defendants only when there

5 are no other separate claims pending against those individuals.

6 See Fox v. S.U.N.Y, 497 F. Supp.2d 446, 451 (Eastern District

7 2007) where the Court said, quote, Because the state is the

8 real party in interest for the Plaintiffs' claims against the

9 individual Defendants in official capacities, it would be

10 redundant to permit these claims to proceed when the plaintiff

11 already has a cause of action against the state and the

12 remaining claims against the individual Defendants have been

13 dismissed, unquote.

14

Here, as I will discuss shortly, other claims against

15 the official capacity Defendants survive this motion to

16 dismiss. So by necessity, those Defendants must remain in the

17 case. I leave unresolved the question of sovereign immunity as

18 to the Title II claims, so there is an additional reason why

19 those claims against the official capacity Defendants should

20 remain. That is because it's unclear at this stage whether

21 Plaintiffs may or may not sue the government entity directly on

22 the ADA Title II claim as set forth in Candelaria at 3. It may

23 be that the official capacity Defendants are the only valid

24 avenue through which to pursue this claim. Lastly, dismissal

25 of the official capacity Defendants would not promote any

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22

1 economy of resources at this stage of the litigation and

2 because the parties don't dispute that the real party in

3 interest in an official-capacity suit is the government entity,

4 the effect of any eventual judgment will be the same on the

5 official capacity and institutional Defendants. Harris at 72.

6 So Defendants' motion to dismiss the claims against the

7 official capacity Defendants as redundant is thus denied.

8

Turning now to Mootness: That is a, quote, doctrinal

9 restriction stemming from the Article III requirement that

10 federal courts decide only live cases or controversies. A case

11 is moot if the parties lack a legally cognizable interest in

12 the outcome of the case. In re Zarnel, 619 F.3d 156, 162. See

13 Powell v. McCormack, 395 U.S. 486, 496. The Supreme Court,

14 however, has long recognized exceptions to this doctrine. See,

15 for example, U.S. Parole Commission v. Geraghty, 455 U.S. 388,

16 399. These exceptions, quote, are particularly applicable in

17 class action cases in the ... civil rights arena, unquote.

18 Samele v. Zucker, 324 F. Supp. 3d, 313, 328 (Eastern District

19 2018).

20

Defendants present two arguments for why this case

21 should be dismissed as moot. The first is that, quote, the

22 transfer of ... the named Plaintiffs to residences in the

23 community constitutes an intervening circumstance that deprives

24 these Defendants of a personal stake in the outcome of the

25 litigation, unquote. And, quote, mitigates the concern that,

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1 absent injunctive relief, they will be subject to allegedly

2 unconstitutional conduct in the future, unquote. That's at

3 Defendants' memo at page 10. And the second is that, quote,

4 DOCCS has issued a policy memorandum advising responsible

5 supervisory staff at statewide, that inmates within the

6 definitions of the putative classes here will not be held past

7 their respective release dates because of an unmet need for

8 mental health housing, unquote. That's in Defendants' reply at

9 4. Plaintiffs, conversely, argue that several exceptions to

10 mootness apply here, and the Defendants have failed to satisfy

11 their formidable burden to show mootness.

12

First I'm going to discuss the release of the

13 individual Plaintiffs and then I'll turn to the memorandum.

14

Defendants first argue that to the extent Plaintiffs

15 C.J., M.J., J.R., D.R. and M.G. seek release from RTFs or

16 prison or seek to assert claims on behalf of either putative

17 class, their claims are moot because they have been released.

18 That's in Defendants' memo at 7. This argument also presumably

19 now includes Plaintiffs PC, according to Defendants' letter of

20 May 8, 2020, which is Docket Entry 124. Defendants' argument

21 posits that the transfer of the named Plaintiffs to residences

22 in the community is an intervening circumstance that deprives

23 these Plaintiffs of a personal stake in the outcome of the

24 litigation and the concern that they'll be subject to

25 unconstitutional conduct in the future. See Shannon v.

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1 Venettozzi, 749 F. App 10,13, citing Salahuddin v. Goord, 467

2 F.3d 263, 272. Defendants contend that the claims asserted by

3 these named Plaintiffs in the general class and the RTF

4 Subclass, (collectively, I'm going to call these people the

5 original named Plaintiffs) are no longer alive because they now

6 lack legally cognizable interest in resolution of this matter.

7

I understand Judge Smith's concerns about the

8 potential for the new facts and allegations in the SAC to

9 change the calculus for deciding Defendants' motion on this

10 point. To the extent the allegations in the SAC relate to the

11 claims of the original Plaintiffs, I should await full briefing

12 addressed to the SAC. But to the extent the new facts and

13 allegations apply to the new Discharge Class and not the

14 general class and the RTF Subclass, mootness has been briefed.

15 In addition to the RTF class's claims under the Eighth and

16 Fourteenth Amendments, the general class's claim and,

17 therefore, the claim of all the original named Plaintiffs in

18 the FAC, is that under the ADA and the RA, the Defendants are

19 obligated to see to it that Plaintiffs receive services in the

20 most integrated setting appropriate to their needs and that

21 Defendants have not done so because they have caused Plaintiffs

22 to be institutionalized and segregated in state prisons, rather

23 than provided adequate residential placements in the most

24 integrated setting that's appropriate. That's from the FAC

25 paragraph 408. See also paragraph 419, where it's alleged that

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1 Defendants caused Plaintiffs to receive programs and services

2 in the institutionalized and segregated setting of state

3 prisons, rather than in the most integrated setting appropriate

4 to their needs.

5

The gist of the general class's claim looks to me

6 they are being held in prison too long. While the new claims

7 for the discharged claim specifically address the conditions in

8 which those who have been discharged now find themselves, and

9 the allegedly inadequate level of integration in those

10 settings, the claims of the original named Plaintiffs in both

11 the SAC and the FAC do not seem to focus, at least not

12 primarily, on the argument that the places they were eventually

13 put are inadequate. The claims saying that Defendants have

14 discriminated against Plaintiffs by placing them in segregated

15 settings like shelters, see SAC paragraphs 762 and 773, are

16 advanced mainly in connection with the new discharge class

17 Plaintiffs. Accordingly, while the SAC explicitly includes new

18 facts about some of the original named Plaintiffs, see

19 paragraphs 46, 48 through 64 and 82 through 89, and expands the

20 scope of facts and allegations regarding segregated settings

21 into which Plaintiffs are discharged, see, for example,

22 paragraphs 390 to 391, 398 to 419, 457, 486 to 90, 495, 636 to

23 37, 656, 659 and 699, I do not believe this has hindered by

24 ability to rule on Defendants' motion to the extent the claim

25 is that the original Plaintiffs were held in prison too long.

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1 To the extent their claim is that the conditions into which

2 they were released are not sufficiently integrated, the new

3 allegations that facts in the SAC change the scope and nature

4 of the claims and because their effects on Defendants' mootness

5 arguments have not been briefed, Defendants' motion is denied

6 without prejudice to renewal to that extent.

7

To the extent Plaintiffs' claims relate to their being

8 held in prison too long, I'm going to address the claim.

9 Defendants say that release of a named Plaintiff has mooted

10 these claims, plaintiffs say that three exceptions to mootness

11 apply: Voluntary cessation, picking off of the named

12 Plaintiffs, and the inherently transitory nature of the claims.

13 As I'll discuss momentarily, I find that at least the

14 inherently transitory exception applies, at least at this

15 stage.

16

The mootness doctrine has, quote, weathered a complex

17 history, unquote, in the context of class actions Eckert v.

18 Equitable Life 227, F.R.D., 60, 63 (Eastern District 2005), and

19 thus presents the court with special concerns. Although the

20 mootness inquiry is intensely factual and situational, Eckert

21 at 63, as a general rule, if the claims of a named Plaintiff

22 are resolved before the Court certifies the class, the entire

23 action is mooted. Comer v. Cicneros 37 F.3d 775, 798. See

24 Jobie O. v. Spitzer, 2007 Westlaw 4302921, at page 4, (Southern

25 District December 5, 2007). Quote, class certification acts as

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1 a lifeboat for a claim that would otherwise be moot due to the

2 resolution of Plaintiffs' claims, unquote, because the class,

3 quote, acquires a legal status separate from the interest

4 asserted by the named plaintiff, unquote, Eckert at 63, see

5 Jobie O. at 5, but where no class has been certified, generally

6 the class claims do not survive.

7

Quote, Where class claims are inherently transitory,

8 however, the termination of the class representative's claim

9 does not moot the claims of the unnamed members of the class,

10 unquote. Robidoux v. Celani, 987 F.2d, 931, 938 to 39. This

11 is because, quote, some claims are so inherently transitory

12 that the trial court will not have ... enough time to rule on a

13 motion for class certification before the proposed

14 representative's individual interest expires, unquote. Mental

15 Disability Law Clinic v. Hogan, 2008 Westlaw 4104460 at page 9,

16 (Eastern District August 28, 2008). Quote, under this mootness

17 exception, a case will not be moot, even if the controversy as

18 to the named Plaintiffs has been resolved, if: (1), it is

19 uncertain that a claim will remain live for any individual who

20 could be named as a Plaintiff long enough for the Court to

21 certify the class; and (2), there will be a constant class of

22 persons suffering the deprivation complained of in the

23 complaint, unquote. Salazar v. King, 822 F.3d 61, 73. When

24 these criteria are met, quote, courts permit the class

25 certification to relate back to filing of the complaint and

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1 hold that the Plaintiffs have properly preserved the merits of

2 the case for judicial resolution, unquote. Comer, 37 F.3d at

3 799.

4

Defendants assert that for Plaintiffs to be entitled to

5 this mootness exception, Plaintiffs must have filed a motion

6 for class certification while they have live claims. That's in

7 Defendants' reply at 2. Several district courts in this

8 circuit, however, have concluded that Second Circuit has no

9 such requirement. See, for example, Bellin v. Zucker, 2020

10 Westlaw 2086009 at pages 3 to 4, (Southern District April 30,

11 2020); Hogan 2008 Westlaw 4104460 at page 9; Eckert 227 F.R.D.

12 at 63 to 64; and German v. Federal Home Loan Mortgage Corp. 896

13 F.Supp. 1385, 1399 (Southern District 1995). Instead, these

14 courts have found that the case can move forward, quote, in

15 situations where a Plaintiff has not yet had a reasonable

16 opportunity to file a motion for class certification; namely,

17 where there has been no undue delay, the Court retains subject

18 matter jurisdiction despite the Plaintiffs' failure to move for

19 class certification, unquote. Eckert at 63, 64.

20

I find these cases convincing. I don't believe that

21 Plaintiffs must file a motion for class certification with the

22 class complaint or early on in discovery, particularly where

23 any such motion would have to be bare-bones, just to avoid

24 mootness. Requiring the motion to avoid mootness is especially

25 inappropriate here where Defendants have always maintained that

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1 Plaintiffs' status in prison was temporary until housing became

2 available. See Defendants' reply at 10. Plaintiffs' release

3 was entirely within Defendants' control and Defendants seem to

4 have strategically released Plaintiffs in response to the

5 lawsuit. Additionally, discovery in this case is ongoing.

6 Plaintiffs have sought discovery on issues relevant to class

7 certification and in a case of this complexity, the delay in

8 moving for class certification is not excessive. See Greif v.

9 Wilson Elser, 258 F. Supp.2d, 157, 161 (Eastern District 2003)

10 where the Court declined to apply the relation back doctrine

11 when after a 20-month delay, the plaintiff did not indicate

12 that she was prevented from commencing discovery or moving for

13 class certification. In that case, Plaintiff hadn't even

14 sought discovery. So there was undue delay. But here,

15 discovery has been ongoing.

16

In short, although many of the cases applying the relation

17 back doctrine have done so after a motion to certify the class

18 has been previously been filed, I do not see the filing of such

19 a motion as a requirement. As long as a, quote, justiciable

20 controversy exists some point prior to class certification,

21 unquote, and Plaintiffs have not, unquote, unduly delayed,

22 unquote, the relation back doctrine will serve to preserve the

23 action if the requirements of the inherently transitory

24 exception are met. Crisci v. Shalala, 169 F.R.D. 563, 567

25 (S.D.N.Y., 1996). I note that the second circuit is

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1 considering this issue in the Bellin case, so that decision

2 could change things sooner or later.

3

Turning now to whether the requirements of the inherently

4 transitory doctrine are met, I find the first prong is easily

5 satisfied here, as plaintiffs were held in temporary status due

6 to the unavailability of community-based mental health housing.

7 Defendants concede that this was meant to be a short-term

8 solution to a housing shortage, which meant that Plaintiffs

9 could be released at any time once housing became available.

10 See Defendants' reply at 10. Furthermore, Plaintiffs have

11 shown that Defendants had discretion for when and where to

12 release plaintiffs, and as demonstrated by the evidence

13 provided by Plaintiffs, prioritized the release of named

14 Plaintiffs after this litigation was filed. See evidence

15 summarized in Plaintiffs' memorandum at page 5 and notes 4

16 through 7.

17

It is clearly uncertain, therefore, that a claim could

18 remain live for any individual who could be named as a

19 Plaintiff long enough for the Court to certify a class. See

20 Salazar at 73.

21

The second prong of the analysis, that there will be a

22 constant class of persons suffering the deprivation complained

23 of in the complaint, is more difficult for Plaintiffs to show

24 at this stage, in light of Defendants' policy memorandum which

25 Defendants argue in the challenge to practice. When the action

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1 was commenced and before Defendants issued their purported

2 policy change, however, Plaintiffs clearly could show and

3 Defendants could not dispute that there were a, quote,

4 fluctuating number of people in prison past their ... release

5 dates, unquote. Plaintiffs' memorandum at 11. See Rosenthal

6 Declaration, Exhibit 87 at 4, 5, 8, 9 through 10 and 11.

7 Plaintiffs' ability to demonstrate this constant class or not

8 is now inextricably tied to Defendants' purported voluntary

9 cessation of the challenged conduct. If the practice has

10 stopped, there will not be a constant class. And if it has not

11 stopped, there will be. As I will discuss in a moment,

12 Defendants have not sufficiently shown here that they have

13 actually stopped this practice, at least not yet. Because, as

14 I will explain, I find that the memorandum and policy change do

15 not show that the challenged conduct has, in fact, ceased, and

16 that there may be a reasonable expectation that the challenged

17 conduct will recur, I think it is plausible that there is or

18 will be a constant class of persons suffering the deprivation.

19

Because Plaintiffs have shown that the claims at issue

20 here are inherently transitory and they have not unduly delayed

21 in bringing the motion for class certification, the motion as

22 to mootness is denied as it relates to the claims of the

23 original named Plaintiffs.

24

Turning now to the Policy Memorandum: Defendants argue

25 that the allegations in the FAC are moot because DOCCS has,

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1 quote, committed to discontinue the practices complained of in

2 the amended complaint, unquote. And, quote, issued a policy

3 memorandum advising responsible supervisory staff statewide

4 that inmates within the definitions of the putative classes

5 here will not be held past their respective release dates

6 because of an unmet need for mental health housing, unquote.

7 Defendants' reply at page 4. I believe this argument has been

8 sufficiently briefed, including with the sur-replies that I may

9 rule on it.

10

A Defendant's voluntarily cessation of challenged conduct

11 will only moot a lawsuit if, quote, the challenged conduct has,

12 in fact, ceased, unquote. Quote, there is no reasonable

13 expectation that the alleged violation will recur, unquote.

14 And, quote, interim relief or events have completely and

15 irrevocably eradicated the effects of the alleged violation,

16 unquote. American Freedom v. MTA, 815 F.3d 105, 109; see

17 Seidemann v. Bowen, 499 F.3d 119, 128; Ciaramella v. Zucker,

18 2019 Westlaw 4805553, at page 5, (Southern District

19 September 30, 2019).

20

Usually, a party's, quote, voluntary cessation of

21 allegedly unlawful conduct ... does not suffice to moot a case,

22 unquote. N.Y. Pub v. Whitman, 321 F.3d 316, 327, quoting

23 Friends of the Earth v. Laidlaw, 528 U.S.167, 174. A party,

24 quote, claiming that its voluntary compliance moots a case

25 bears the formidable burden of showing that it is absolutely

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1 clear that the allegedly wrongful behavior could not reasonably

2 be expected to occur, unquote. Seidemann 499 F.3d at 128,

3 because, quote, a party should not be able to evade judicial

4 review ... by temporarily altering questionable behavior,

5 unquote. City News v City of Waukesha, 531 U.S. 278, at 284,

6 Note 1. This is of particular concern in cases where

7 Plaintiffs are, quote, prisoners, who are at the mercy of their

8 keepers, unquote. Inmates of Attica v. Rockefeller 453 F.2d

9 12, 23 to 24.

10

DOCCS alleges that this policy change, and the half-page

11 memorandum sent to "All Superintendents and Community

12 Supervision Bureau Chiefs" -- I'm quoting that from Exhibit 1

13 of the Enright Declaration -- satisfies their burden to show

14 that the effects of their actions are completely and

15 irrevocably eradicated, that the conduct has ceased, and that

16 there's no reasonable expectation that the alleged violation

17 will recur. I cannot agree at this stage.

18

First, Defendants have not demonstrated they have in fact

19 ceased the practice of prolonging the institutionalization of

20 members of the putative classes in prison, and in circumstances

21 such as these, this memorandum alone does not convince me that

22 the practice has in fact changed. See Salem versus Pompeo, 432

23 F. Supp. 3d, 222 at 234, Eastern District, 2020. Where

24 evidence of noncompliance with a new policy weighed against

25 mootness. It appears from the record that the same practices

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1 could and may well continue either because Defendants obtained,

2 quote/unquote, waivers of release from seriously mentally ill

3 prisoners, see Rosenthal Declaration Exhibit 105 and Exhibit

4 103 at 119, for which there's no formal process other than

5 signing a statement, Rosenthal Declaration Exhibit 103 at 19,

6 or because of delays in release for, quote, unforeseen

7 circumstances, unquote, as referenced in the Enright

8 declaration, Document 92 paragraph 14, and Defendants'

9 interrogatory responses. While Defendants assure the Court

10 that these, quote, unforeseen circumstances, unquote, would

11 only, quote, temporarily, unquote, delay an individual's

12 release, giving examples such as, quote, unexpected medical

13 issues, transportation problems, extreme weather, or a severe

14 psychiatric episode that requires observation, unquote, they

15 conclude this list by including, seemingly as an afterthought,

16 a, quote, temporary delay in housing availability (such as a

17 fire or other event), unquote. That's Docket Entry 114-1 at

18 15. The entire crux of Plaintiffs' complaint arises from

19 temporary delays in housing availability. Defendants have not

20 shown that there is no possibility that a seriously mentally

21 ill prisoner will be kept in prison beyond his release date

22 when they have not disavowed seeking waivers and when they

23 reserve the right to prolong incarceration due to unforeseen

24 circumstances.

25

Beyond these loopholes in the new policy, Defendants have

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1 not -- Defendants have shown that the memorandum has been

2 issued, but have not shown that it has, in fact, been

3 implemented to ensure that Defendants no longer hold

4 individuals with serious mental illness in prison past their

5 release date or that all Defendants named in this case have

6 foreclosed the possibility of continuing the practice.

7

Defendant Sullivan, the OMH Commissioner, stated

8 unequivocally in her interrogatory responses, that, quote, no

9 OMH policies, rules, practices, procedures, systems, et cetera,

10 were changed as a result of the DOCCS implementation of its

11 policy as set forth in the DOCCS memorandum. This memorandum

12 set forth a DOCCS policy that has not changed or required a

13 change to any OMH policy or procedure, unquote. Rosenthal

14 Declaration Exhibit 104 at 4. Additionally, DOCCS did not

15 require any training or other mechanisms to ensure that staff

16 actually implement the memorandum and policy change properly.

17 Rosenthal Declaration Exhibit 103 at 11 and Exhibit 116 at 6.

18 And, in fact, DOCCS decided that no new training was required

19 to implement the policy change beyond the memorandum, Rosenthal

20 Declaration Exhibit 103 at 10, despite the fact that large

21 numbers of Defendants' staff, spread out across a large and

22 diverse system throughout the state, are tasked with its

23 implementation, and it represents a significant change from

24 past practice.

25

It is also of concern that throughout the litigation,

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1 including in their briefs on this motion, Defendants have

2 continued to justify their decision to hold indigent

3 individuals with serious mental illness past their lawful

4 release dates by reference to unspecified, quote, penological

5 justifications and safety concerns, unquote. For example,

6 Docket Entry 80 at 2, and 21 to 22, Defendants' reply at 10,

7 Document 103 at 3, and Document 114-1 at 7 to 8. These types

8 of arguments do not inspire confidence that the complained-of

9 conduct is completely and irrevocably eradicated, or that it

10 might not recur upon a change of administration, change of

11 policy, or change of mind, particularly because the change in

12 policy appears to be at least an intentional response to the

13 lawsuit and perhaps an effort to moot the lawsuit. See

14 Edelhertz v. City of Middletown, 2013 Westlaw 4038605 at pages

15 3 to 4 (Southern District May 6, 2013) which found a case was

16 not moot where the statute was changed in response to the

17 lawsuit and nothing prevented the Defendants reenacting it if

18 the case were dismissed.

19

Defendants, to refute these concerns, point to my decision

20 in Inside Connect v. Fischer, 2014 Westlaw 2933221, at pages 8

21 to 9, from June 30, 2014, where I dismissed an action for

22 injunctive relief against DOCCS officials. In that case,

23 however, the evidence presented clearly showed that the

24 challenged conduct had, in fact, ceased a year before. The

25 underlying reason that motivated the challenged conduct in the

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1 first place no longer existed, and the Plaintiff offered

2 nothing more than baseless speculation that DOCCS was

3 continuing the challenged conduct.

4

While Defendants are correct that there's nothing

5 suspicious about their making efforts to resolve the

6 problematic conduct on their own, see Defendants sur-reply at

7 page 7, in order to moot a claim, Defendants must demonstrate

8 both that they have ended the conduct and that the conduct will

9 not resume once the Court is no longer looking over their

10 shoulders. I am reminded of the NYPIRG case where The Second

11 Circuit found that the state agency's implementation of a

12 commitment letter to halt the challenged conduct was, quote,

13 indicative of a degree of good faith, unquote, but nevertheless

14 failed to show that it was, quote, absolutely clear that the

15 allegedly wrongful behavior could not reasonably be expected to

16 recur, unquote. 321 F.3d at F27. As both the Supreme Court

17 and The Second Circuit have stated, merely disclaiming any

18 intention to resume challenged conduct is insufficient to moot

19 a case. United States v. W.T. Grant, 345 U.S. 629, 633 and

20 Dean v. Blumenthal, 577 F.3d 60, 65. Here, in circulating a

21 half-page memorandum with a broad exception, while continuing

22 to justify the policy reasons behind their original practice,

23 Defendants here have failed to satisfy their burden and the

24 motion is therefore denied as to the policy memorandum.

25

That said, it is plain to me that Defendants, with the

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1 guidance of the Attorney General's office, recognize and are

2 trying to rectify the problems this lawsuit has highlighted and

3 they may yet demonstrate to my satisfaction that the conduct

4 has, in fact, ceased as the policy change is further

5 implemented. I hope the parties will continue to work on

6 whether a negotiated solution is possible, recognizing on the

7 one hand that Defendants may be able to show mootness in the

8 future and recognizing that the state budget is in worse shape

9 than ever, and on the other hand recognizing that the rights of

10 disabled people are at stake.

11

Turning now to Failure to Exhaust: Defendants argue that

12 Plaintiffs' claims must be dismissed for failure to exhaust

13 their administrative remedies as required by federal law.

14 Exhaustion is an affirmative defense, not a pleading

15 requirement; thus, inmate Plaintiffs need not, quote,

16 specifically plead or demonstrate exhaustion in their

17 complaints, unquote. Jones v. Bock, 549, U.S.199 at 216.

18 Instead, Defendants must demonstrate lack of exhaustion. Colon

19 v. DOCCS, 2017 Westlaw 4157372 at page 4 (Southern District

20 September 15, 2017). Because of the extraneous evidence

21 involved, Defendants' exhaustion requirement must be converted

22 to a motion for summary judgment under Rule 12(d).

23

Under the Prison Litigation Reform Act, or PLRA, quote, no

24 action shall be brought with respect to prison conditions under

25 ... any federal law, by a prisoner confined in any jail,

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1 prison, or other correctional facility until such

2 administrative remedies as are available are exhausted,

3 unquote. 42 U.S. Code Section 1997e(a). By the plain terms of

4 the statute, the administrative exhaustion requirement applies

5 only to, quote, prisoners, unquote. See Greig v. Goord, 169

6 F.3d 165, 167, where the Second Circuit held that litigants who

7 file prison condition actions after their release from

8 confinement are no longer prisoners for purposes of Section

9 1997 e(a) and, therefore, need not satisfy the exhaustion

10 requirement.

11

Plaintiffs do not dispute that the general class

12 Plaintiffs are prisoners within the meaning of the PLRA and,

13 thus, are required to exhaust. But they argue in their memo at

14 page 13 that the RTF Plaintiffs are not because their sentences

15 have fully ended. The PRLA defines a prisoner as, quote, any

16 person incarcerated or detained in any facility who is accused

17 of, convicted of, sentenced for, or adjudicated delinquent for

18 violations of criminal law or the terms and conditions of

19 parole, probation, pretrial release, or diversionary programs,

20 unquote. That's 42 U.S. Code Section 1997e(h). The Second

21 Circuit has clarified that exhaustion applies only to

22 facilities in which people are, quote, held involuntarily as a

23 result of violating the criminal law, unquote. Ruggiero v.

24 County of Orange, 467 F.3d 170 at 174 to 75. This definition

25 applies to, quote, suits filed by all litigants who could be

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1 characterized as prisoners regardless of the type of facility

2 in which they are imprisoned, unquote. Ruggiero at 175.

3

In asserting that Plaintiffs are prisoners required to

4 exhaust, Defendants incorrectly state that the PLRA's

5 exhaustion requirement applies to, quote, all facilities in

6 which individuals are held involuntarily, unquote. That's in

7 their brief -- in their memorandum at pages 12 to 13. But what

8 the phrase actually is, is facilities where individuals are,

9 quote, held involuntarily as a result of violating the criminal

10 law. By Defendants' own definition, the RTF Plaintiffs were

11 not so held on the day they filed this lawsuit. Defendants

12 concede that the RTF Plaintiffs were being held not because

13 they owed any more time on the violation of criminal law that

14 landed them in prison, but because there was, in Defendants'

15 view, no suitable place to which to release them. Because the

16 RTF Plaintiffs were not prisoners when they filed, exhaustion

17 was not required.

18

Ruggiero, on which Defendants rely, is easily

19 distinguishable from this case, as the Plaintiff there was

20 confined because of a parole violation which arises from

21 failing to abide by conditions of early release from a criminal

22 sentence and is unambiguously a sentence resulting from a

23 violation of the criminal law. See Ruggiero at 175. In

24 contrast, the RTF Subclass, having completed the entirety of

25 the determinate sentences when they filed this complaint, were

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1 not confined because of a violation of the criminal law. They

2 were explicitly held past those sentences by Defendants' own

3 admission to, quote, protect the safety and continuity of care

4 of Plaintiffs as well as the safety of the community, unquote,

5 and because there was no community-based mental health housing

6 available. Defendants' memorandum at 21 to 22. Therefore, I

7 find the RTF Plaintiffs are not prisoners within the meaning of

8 the PLRA. I also note that, interestingly, when arguing

9 exhaustion, Defendants assert that Plaintiffs are prisoners for

10 purposes of the PLRA, in their memorandum at 12, but for

11 purposes of the Eighth Amendment claim, which I'll discuss

12 below, Defendants claim that conditions in the RTF are not

13 punishment for a violation of criminal law. That's at page 21

14 of their brief.

15

Although I find the exhaustion requirement does not apply

16 to the RTF Subclass, Plaintiffs do not dispute that it does

17 apply to M.G. and P.C., who are the general class Plaintiffs.

18 Out of an abundance of caution, I will also address whether all

19 Plaintiffs, not just M.G. and P.C., did, in fact, exhaust their

20 administrative remedies before filing suits. Defendants here

21 only challenge whether Plaintiffs adequately appealed their

22 grievances to the Central Office Review Committee, or "CORC,"

23 and whether they adequately waited until CORC rendered a

24 decision before bringing this lawsuit and they reserved their

25 rights to dispute other issues regarding administrative

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1 exhaustion at a later time. See Defendants' Memo at 15, Note

2 7. As such, I will confine my analysis to that issue.

3

In order to exhaust under the PLRA, a prisoner must follow

4 the administrative procedures that are available to them;

5 namely, the prison's grievance policy. Jones 549 U.S. at 218.

6 The individual must, quote, use all steps that the agency holds

7 out and do so properly, unquote. Woodford v. Ngo, 548 U.S.81

8 at 90. That includes complying with an agency's deadlines and

9 other critical procedure rules. Woodford at 90.

10

DOCCS's grievance regulations provide two procedural paths

11 that are relevant in this instance. For complaints regarding

12 disability-based discrimination, which the regulations say are,

13 quote, of particular concern, unquote, to DOCCS, the agency

14 provides for an expedited two-step adjudication process found

15 at 7 NYCRR Section 701.9. Discrimination grievances must be

16 sent directly to the facility superintendent for adjudication.

17 If the superintendent denies the grievance, the grievant may

18 appeal directly to the final level, which is CORC. CORC must

19 render a decision within 30 days of receipt. See 7 NYCRR

20 Section 701.9, which incorporates Section 701.5(d)(3)(ii).

21 Complaints that do not allege unlawful discrimination, on the

22 other hand, are subject to a three-step process. These

23 complaints are adjudicated by the Inmate Grievance Resolution

24 Committee, or "IGRC." If the IGRC denies the grievance, the

25 grievant must appeal to the superintendent. And if the

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1 superintendent denies the appeal, the grievant must appeal to

2 CORC, which must adjudicate the appeal within 30 days. That's

3 all in Section 701.5.

4

Under either of these procedural paths, CORC must obtain

5 the individual's written consent if it requires more than 30

6 days to adjudicate the appeal. See Section 701.6(g)(2), which

7 says, quote, time limit extensions may be requested at any

8 level of review, (e.g., time limits for holding an IGRC hearing

9 answering a grievance or an appeal, et cetera). But such

10 extensions may be granted only with a written consent of the

11 grievant, unquote. And at any level of review, quote, matters

12 not decided within the time limits may be appealed to the next

13 step, unquote. That's all from 701.6(g)(2).

14

The regulations, quote, provide no mechanism for enforcing

15 the requirement that the CORC issue a decision in 30 days,

16 unquote. Couvertier v. Jackson, 2014 Westlaw 2781011, at page

17 4, (Northern District May 22, 2014). Indeed, courts have

18 struggled with the question of what to do in situations where

19 CORC does not comply with the 30-day deadline. As, quote,

20 there is no clear answer as to how a court should proceed under

21 the PLRA when it appears that an inmate Plaintiff has followed

22 all the requirements of his institution's administrative

23 procedures, but the final review panel is delinquent in its

24 response to his appeal, unquote. This is because courts try to

25 balance two competing sentiments that, quote, an inmate

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1 Plaintiff should not be penalized for their institution's

2 failure to follow its own administrative procedures, unquote.

3 But, quote, in light of the PLRA's purpose, courts should

4 hesitate to decide the underlying action, unquote, before

5 allowing CORC to have its say. Fuentes v. Furco, 2014 Westlaw,

6 4792110 at page 3 (Southern District September 25, 2014).

7

The Second Circuit has not addressed this issue, but

8 district courts in the Circuit have fashioned solutions that

9 attempt to balance the PLRA's goal of allowing institutions the

10 first opportunity to address an inmate's grievances, against

11 the inmate's right to a federal forum when they have complied

12 with all of the procedural requirements. I will attempt to do

13 so here.

14

Under the PLRA, only those administrative remedies that,

15 quote, are available, unquote, must be exhausted. That's

16 1997e(a). "Availability" means that the incarcerated person,

17 quote, is required to exhaust those, but only those, grievance

18 procedures that are capable of use to obtain some relief for

19 the action complained of, unquote. Ross v. Blake, 136 Supreme

20 Court 1850, 1859. Ross outlined three circumstances under

21 which a prison's administrative remedies are unavailable:

22 First, when an administrative procedure, quote, operates as a

23 the simple dead end, unquote; next, when, quote, an

24 administrative scheme might be so opaque that it becomes,

25 practically speaking, incapable of use, unquote; and finally,

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1 when, quote, prison administrators thwart inmates from taking

2 advantage of a grievance process through machination,

3 misrepresentation or intimidation. That's Ross at 1859 to 60.

4

While The Second Circuit, quote, has not adopted the

5 position ... that delay in responding to a grievance

6 demonstrates per se unavailability, unquote, Mateo v. O'Connor,

7 2012 Westlaw 1075830, at page 7 (Southern District March 29,

8 2012), many district courts have held that a delay in some

9 circumstances may constitute unavailability that would excuse a

10 Plaintiff from exhausting. See, for example, Smith v.

11 Lioidice, 2020 Westlaw 1033644, at page 4 (Southern District

12 March 2nd, 2020); Bell v. Napoli, 2018 Westlaw 6506072, at page

13 7 (Northern District December 11, 2018); Peoples v. Fischer,

14 2012 Westlaw 1575302, at page 9 and Note 125 (Southern District

15 May 3, 2012). I find these cases convincing, especially

16 because DOCCS's own regulations specify that, at every level of

17 the process, quote, matters not decided within the time limits

18 may be appealed to the next step, unquote. That's Section

19 701.6(g)(2). To hold otherwise would incentivize prisons to

20 ignore the deadlines in the regulations in an effort to prevent

21 prisoners from seeking redress in federal courts. This holding

22 comports with the Supreme Court's command that an inmate

23 Plaintiff's compliance with prison grievance procedures is all

24 that's required by the PLRA to properly exhaust. Jones 549

25 U.S. at 218.

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1

Considering that view of the legal question and the

2 factual record before me, Defendants have not demonstrated that

3 they are entitled to summary judgment based on failure to

4 exhaust. Based on the factual record and exhibits submitted,

5 many of which are under seal, it's apparent that all of the

6 Plaintiffs have at least raised fact issues as to whether

7 they've adequately exhausted all available remedies. Exhibit A

8 to the Sequin Declaration, Document 81-1, shows that CORC has

9 records of appeals from D.R. and J R. CORC received D.R.'s

10 appeal on November 19, 2018 and informed him in writing,

11 without his consent, that his appeal would be resolved in

12 approximately one year, more than 12 times the allotted 30

13 days. Neither D.R. nor J.R., whose appeal to CORC was received

14 on November 27, 2018, got a response from CORC by the time the

15 briefs for this motion were filed in late 2019 and early 2020.

16 CORC thus seems to be a simple dead end in their cases. So

17 summary judgment is not warranted.

18

Defendants' allegation that C.J. did not file his CORC

19 appeal until after the filing of this lawsuit, see Sequin

20 Declaration paragraph 6, is incorrect, although it is true that

21 CORC did not receive his appeal until February 2019, after the

22 lawsuit was filed on January 23, 2019. C.J. says he filed two

23 CORC appeals, on November 28, 2018 and again on December 3rd,

24 2018. This is in his declaration. When CORC failed to

25 respond, according to C.J., he wrote two separate letters to

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1 the Green Haven Grievance Program Supervisor, seeking

2 confirmation under Section 701.5(d)(3)(i) that his appeals were

3 transmitted. In response, the grievance clerk orally assured

4 C.J. that he had personally handed the appeals to the grievance

5 program supervisor for transmittal to CORC, and that the

6 supervisor had done so. Despite these assurances, the

7 supervisor inexplicably waited over two months to actually

8 transfer the appeal to CORC. To me, the false reassurance and

9 the unexplained and seemingly needless delay falls within the

10 Ross exception where administrative processes become

11 unavailable due to prison administrators thwarting inmates

12 through machination or misrepresentation. Because C.J.'s

13 account, if true, could show that he has exhausted, summary

14 judgment in Defendants' favor is inappropriate.

15

Turning to M.J. According to him, on October 18, 2018,

16 while incarcerated in the Fishkill Correctional Facility, he

17 filed his original grievance. And by the way, the C.J.

18 declaration covers this in paragraphs 18 through 21. The M.J.

19 declaration, which I'm going to refer to now, discusses this in

20 paragraphs 11 through 21.

21

M.J. was at Fishkill when he filed his initial grievance,

22 but before he got a response, DOCCS transferred him to Green

23 Haven. Fishkill did not forward any response to M.J. there,

24 leaving him confused about how to exhaust because he didn't

25 receive the denial of his Fishkill grievance within the

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1 regulatory time limit and did not have an appeal form on which

2 to submit his appeal. On November 17, 2018, he mailed a letter

3 to the Fishkill grievance clerk, stating his intent to appeal

4 the constructive denial of his grievance. On December 2nd, he

5 received the Fishkill superintendent's denial of his appeal and

6 the next day he mailed the CORC appeal to the Fishkill

7 grievance clerk. He never received confirmation from Fishkill

8 that he they received his appeal or transferred it to CORC and

9 his letters following up went unanswered.

10

P.C. similarly says he filed a discrimination grievance at

11 the Sullivan Correctional Facility, and he got the Defendant --

12 the superintendent's denial on December 3rd, 2018. The next

13 day he signed and submitted his CORC appeal. Despite sending a

14 follow-up letter to the grievance staff after 30 days, he never

15 heard back.

16

Assuming the truth of M.J.'s and P.C.'s accounts as I must

17 on a motion for summary judgment, by failing to transmit their

18 appeals or even respond to their inquiries to confirm transfer,

19 the administrative processes as applied to them plainly

20 operated as a simple dead end or were so opaque that they

21 became, practically speaking, incapable of use. As set forth

22 in Ross at 1859 to 60. Thus again, summary judgment for

23 Defendants is not warranted.

24

Lastly, M.G. avers that he filed a grievance alleging

25 discrimination on November 13, 2018 and that the agency

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1 properly forwarded it to the superintendent directly on

2 November 26, 2018. He got a denial, which stated that the

3 grievance was forwarded to the OMH Unit Chief for, quote,

4 whatever remedial action is deemed appropriate, unquote, and

5 stated that, quote, this superintendent's response completes

6 the grievance process and there is no further appeal available,

7 unquote. Quackenbush Declaration Exhibit 102; and M.G.

8 Declaration Paragraph 14. M.G., nevertheless, submitted a CORC

9 appeal on the day that he received the denial. Quackenbush

10 Declaration Exhibit 102, M.G. Declaration Paragraph 15. By

11 telling M.G. that the superintendent's response completed the

12 grievance process and there was no further appeal available,

13 DOCCS staff told M.G., in essence, that he had exhausted the

14 administrative process. Even if he had not, in fact, exhausted

15 all of his appeals, this letter demonstrates that any further

16 appeal would operate as a dead end or that prison officials

17 prevented him from taking advantage of the grievance process

18 through machination or misrepresentation.

19

Plaintiffs have all presented facts that, if true, would

20 constitute or excuse exhaustion. Contrary to Defendants'

21 arguments that a grievant must outwait CORC, it is, quote, the

22 prison's requirements ... that define the boundaries of proper

23 exhaustion. Jones 549 U.S. at 218. This rule is also

24 consistent with The Second Circuit's holding that remedies are

25 unavailable in situations that the grievance regulations -- the

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1 grievant's regulations did not contemplate. Williams v.

2 Correction Officer Priatno, 829 F.3d 118 at 124. That is

3 exactly where all the Plaintiffs found themselves after timely

4 appealing grievances to CORC, which then failed to issue

5 decisions within its regulatory time limit. The regulations

6 required nothing more from Plaintiffs in order to satisfy the

7 exhaustion requirement.

8

As an aside, I see this issue coming up more and more

9 frequently in my cases with DOCCS. Because this particular

10 case has the attention of higher-level officials at the AG's

11 office and at DOCCS, maybe this is a good time to point out

12 that CORC seems to be way behind in a lot of cases and that

13 that is making more work both for the AG's office and

14 ultimately DOCCS, not to mention the Court, due to motion

15 practice and factual disputes. I understand that resources are

16 tight, but CORC clearing that backlog would ultimately save

17 resources. And I know we're in a pandemic, but this problem

18 has been rearing its head well before that. So just a little

19 editorial aside there.

20

Turning now to the Eighth Amendment: The FAC alleges that

21 Defendants have violated the Eighth Amendment rights of the RTF

22 Subclass. The Eighth Amendment's ban on cruel and unusual

23 punishment bars punishment that is grossly disproportionate or

24 that violates evolving standards of decency that marks the

25 progress of a maturing society. Rhodes v. Chapman, 452 U.S.

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1 337 at 346. Plaintiff has alleged Eighth Amendment violations

2 under two different theories: Prolonged incarceration and

3 criminalization of status. I will address each in turn.

4

Starting with Prolonged Incarceration: Courts have noted

5 that holding an offender beyond, quote, the maximum expiration

6 date of their sentence may, in some circumstances, unquote,

7 give rise to a claim under the Eighth Amendment. Washington v.

8 New York State Parole, 2019 Westlaw 1877343, at page 2

9 (Southern District April 26, 2019). See Wright v. Kane, 1997

10 Westlaw 746457 at page 4, (Southern District December 2nd,

11 1997). Consignment that exceeds a term of imprisonment

12 violates the Eighth Amendment if (1) the alleged deprivation

13 is, in objective terms, sufficiently serious. And (2)

14 Defendants acted with a sufficiently culpable state of mind.

15 Francis v. Fiacco, 942 F.3d 126, 150. See Calhoun v. New York,

16 999 F.2d 647, 652, which looked at whether the length of added

17 confinement inflicted, quote, a harm of ... magnitude, unquote.

18

The requisite state of mind is deliberate indifference.

19 See, for example, Calhoun at 654. In this context, it requires

20 a showing that official knows the risk of unwarranted

21 punishment, failed to act or took only ineffectual action, and

22 that there's a causal connection between the official's

23 response and the unjustified detention. Rivera v. Carroll,

24 2009 Westlaw 2365240, at page 6 (Southern District August 3rd,

25 2009).

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1

Defendants placed the RTF Plaintiffs' in RTF between 246

2 and 502 days past the end of their sentences. See FAC

3 paragraphs 54, 90, 119 and 148. These are lengths of time that

4 I find to be sufficiently serious and a harm of magnitude.

5

See Calhoun at 654, and Rivera, 2009 Westlaw 2365240 at

6 page 3 and 7 to 8, which found a sufficiently serious harm from

7 over-detention of 47 days.

8

Defendants point out that no case has found state

9 Defendants liable, quote, where the state Defendants weighed

10 the proper course of action, acted in accordance with a

11 reasonable understanding of a complicated area of state law,

12 and relayed the legal basis for their actions, unquote, to the

13 Plaintiff. And they're quoting Francis, 942 F.3d at 150.

14

I find Francis to be easily distinguishable. The Court in

15 Francis found the individual Defendants sued in their personal

16 capacities were entitled to qualified immunity, which is not an

17 issue where the Defendants are sued only in their official

18 capacities. In addition, Plaintiff there was challenging how

19 officials had calculated his sentence in the unique individual

20 circumstances of his case. He was not like Plaintiffs here,

21 challenging a concerted policy decision applied intentionally

22 in case after case. Further, Francis was decided on summary

23 judgment. While the record here may some day show that

24 Defendants did their best to comply with the complicated

25 statutory regime, Plaintiffs have plausibly alleged that they

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1 did not. Plaintiffs allege that Defendants were well aware of

2 their required release dates, their housing needs, and the

3 systemic deficiencies in housing, and nonetheless decided to

4 continue their incarceration past their release dates in

5 circumstances essentially indistinguishable from prison. See,

6 for example, FAC paragraphs 230, 273 to 75, 279 to 80, 283, 354

7 to 59, 367 to 369 and 373. While facts may certainly arise as

8 the litigation proceeds that shed further light on Defendants'

9 conduct and state of mind, I agree with the reasoning in Murphy

10 v. Raoul, 380 F. Supp. 3d, 731, 765 (Northern District of

11 Illinois 2019), that Plaintiffs have at this stage alleged

12 facts sufficient to plausibly plead deliberate indifference.

13 Plaintiffs having adequately alleged that, quote, the

14 Defendants knew of this problem and the risk that they were

15 inflicting unwarranted punishment, unquote, that, quote, they

16 failed to act or took ineffectual action, unquote, to address

17 that problem and, quote, their response caused the unjustified

18 detention, unquote, because, quote, they chose to confine these

19 individuals past their release date, unquote, which plausibly,

20 quote, amounts to reckless disregard of constitutional rights,

21 unquote. Murphy at 765. I cannot conclude on the basis of the

22 FAC that the Defendants were not deliberately indifferent.

23

While the thrust of Defendants' argument is that

24 Plaintiffs' prolonged incarceration was, quote, penologically

25 justified to protect the safety and continuity of care of

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1 Plaintiffs as well as the safety of the community, unquote, 2 that's from Defendants' brief at 21 to 22, they offer no Second 3 Circuit authority for why I should consider these supposed 4 justifications in my analysis in the context of a claim of 5 over-incarceration. While the existence or not of a 6 penological justification makes sense in the context of 7 determining whether the imposition of a sentence or the 8 conditions of confinement amount to cruel and unusual 9 punishment, it does not make sense in the context of a claim 10 that the sentence and, therefore, any legitimate penological 11 purpose has ended, but the Plaintiff was not released. The 12 most recent Circuit case on prolonged incarceration, Francis, 13 makes no mention of penological justification, and district 14 courts in the circuit have found the concepts inapplicable to a 15 claim that a prisoner's incarceration exceeded what was 16 justified by his sentence. See Francis, 2018 Westlaw 1384499, 17 at page 10 (Northern District March 16, 2018), reversed and 18 remanded on other grounds, 942, F.3d 126; Brunson v. Duffy, 14 19 F. Supp. 3d 287, 292 (Southern District 2014). See also 20 Campbell v. Peters 256 F.3d, 695, 700 (Seventh Circuit 2001), 21 which held that if a prisoner serves the correct amount of 22 time, he has not been confined without penological 23 justification; and if he serves too much time, he has been 24 confined without penological justification. Even Sample v. 25 Diecks, 885 F.2d 1099 at 1108, (Third Circuit 1989), which
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1 Defendants rely in their reply at page 10, does not support

2 application of the concept of penological justification in the

3 context of prolonged incarceration. It acknowledged that there

4 is no penological justification for keeping a prisoner beyond

5 his date of release because, quote, any deterrent and

6 retributive purposes served by his time in jail were fulfilled

7 as of that date, unquote. That's Sample at 1108. While it

8 goes on to suggest that there might arguably be a penological

9 justification where a prisoner is erroneously kept too long due

10 to miscalculation of his sentence, in the sense that having an

11 error-free prison system would be prohibitively costly or even

12 impossible. See Sample at 1108 to 09. It never began to

13 suggest that knowingly and intentionally keeping a prisoner

14 beyond his term could be penologically justified. I find that

15 where prison officials know that a prisoner has reached the end

16 of, quote, the term established by the state, unquote, Sample

17 at 1108, any penological justification the state might have for

18 keeping him incarcerated would expire at the time. In other

19 words, there is penological justification for holding a

20 prisoner to the date at which he is entitled to be released,

21 but not beyond it.

22

I'm realizing I was about to discuss penological

23 justification for the general class, but the general class does

24 not bring the Eighth Amendment claim. So I think I can skip

25 over that part.

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1

I also note, however, that I could not find at this stage

2 on the present record that the safety of the prisoner or of the

3 community are in fact the reasons for holding Plaintiffs too

4 long or that these justifications would suffice. It may be

5 that those are the actual reasons or more likely part of the

6 actual reasons, but I cannot so conclude from the FAC which

7 plausibly attributes the challenged actions to the state's

8 failure to provide sufficient community-based housing and

9 supportive services. Factual development and revisiting the

10 issue on summary judgment would be necessary. And I am dubious

11 that the proffered safety rationale would suffice in any event.

12 Potentially dangerous people, and sick people, are released

13 from prison every day. If that were enough to hold someone

14 beyond his sentence, there are many prisoners who would be

15 imprisoned indefinitely at the whim of corrections officials.

16 Further, Defendants' argument amounts to the claim that the

17 state can detain people indefinitely because the state has

18 determined that they need a type of housing that's not

19 available to them. That would seem to create a Catch 22 that

20 would be a large enough loophole to swallow the Eighth

21 Amendment and their liberty.

22

So the motion to dismiss the Eighth Amendment claim on the

23 prolonged incarceration theory is denied.

24

The Eighth Amendment also bars punishment of a status or

25 condition and involuntary conduct that is inseparable from that

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1 status or condition. See Robinson v. California, 370 U.S. 660

2 at 666 to 67, which noted that penalizing mental illness is

3 universally thought to be cruel and unusual. See also Justice

4 White's concurring opinion in Powell v. Texas, 392 U.S. 514,

5 551 to 52, addressing involuntary conduct.

6

Defendants rightly point out that the majority of cases

7 Plaintiffs cite, including Robinson v. California, 370 U.S.

8 660, involve statutes that that impermissibly criminalize

9 status or involuntary conduct related to that status, whether

10 or not the person charged otherwise engaged in substantive

11 criminal conduct. For example, in the Fourth Circuit case

12 cited by Plaintiffs, Manning v. Caldwell, 930 F.3d 264 (Fourth

13 Circuit 2019), the Court found that the Plaintiffs stated an

14 Eighth Amendment claim where a Virginia statute made it a

15 criminal offense for, quote, habitual drunkards, unquote, to

16 possess, consume or purchase alcohol. See Manning at 284. The

17 Fourth Circuit in that case stressed the narrow impact of its

18 holding, noting that Plaintiffs did not challenge the

19 constitutionality of any restrictions imposed after conviction

20 of a crime, because, unquestionably, courts may restrict an

21 individual's liberty pursuant to a criminal sentence. And in

22 some cases may do so after the formal sentence has concluded.

23 Here, by contrast, the extension of the prison term is not

24 mandated by a statute that explicitly makes status or

25 involuntary conduct a crime. Plaintiffs allege rather that

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1 they are subject to restrictions which unconstitutionally

2 lengthen a prison sentence imposed after conviction and

3 imprisonment for an underlying crime.

4

Plaintiffs again point to Murphy v. Raoul, however, to

5 support their assertion that the conduct alleged here

6 nevertheless impermissibly criminalizes status and involuntary

7 conduct. See 380 F. Supp. 3d at 765. In Murphy, the state

8 prison system would not release prisoners who had no address to

9 which to go and would not approve shelters as housing, which

10 kept homeless prisoners incarcerated indefinitely, effectively

11 punishing their status as homeless. The Murphy court reasoned

12 that for these Plaintiffs, the failure to secure housing was,

13 quote, not voluntary conduct merely related to or derivative of

14 the status of homelessness, but is entirely involuntary conduct

15 that is inseparable from their status of homelessness, unquote.

16 That's Murphy at 765. There the Defendants also maintained

17 that criminalization of status was inapplicable because the

18 state was not charging the Plaintiffs with a crime of being

19 homeless under a statute as the other jurisdictions did in the

20 case law. The Murphy court disagreed, calling the effort to

21 distinguish the cases, quote, a distinction without a

22 difference, unquote, because, quote, all the Eighth Amendment

23 calls for is punishment, unquote, not a new charged crime.

24 Murphy at 264. I agree.

25

While I note that this theory likely presents a steeper

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1 climb for the Plaintiffs than the prolonged incarceration line

2 of cases, I believe they have plausibly shown that Defendants

3 have kept them locked up due to their status as seriously

4 mentally ill inmates, coupled with the fact they have no good

5 place to go, similar to Murphy. For this reason, Defendants'

6 motion to dismiss the criminalization of status claims is

7 denied.

8

Finally, turning to Substantive Due Process: Plaintiffs

9 also allege that Defendants' conduct violates -- I'm going to

10 abbreviate it SDP under the Fourteenth Amendment. SDP exists

11 to prevent the government form infringing those immunities,

12 quote, implicit in the concept of ordered liberty, unquote,

13 and, quote, so rooted in the traditions and conscience of our

14 people as to be ranked as fundamental, unquote. Rochin v.

15 California 342 U.S. 165, 169, 172; See U.S. v. McLaurin, 731

16 F.3d 258, 261. Further, for strict scrutiny to apply, the

17 challenged conduct must, quote, shock the contemporary

18 conscience. County of Sacramento v. Lewis, 523 U.S. 833, 847,

19 Note 8. But, quote, if a constitutional claim is covered by a

20 specific constitutional provision, such as the ... Eighth

21 Amendment, the claim must be analyzed under the standard

22 appropriate to that specific provision, not under the rubric of

23 substantive due process, unquote. Lewis at 843. See Graham v.

24 Connor, 490 U.S. 386, 394. Quote, this is so because ... the

25 guideposts for responsible decision making in the unchartered

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1 area of substantive due process are scarce and open ended, 2 unquote, causing the Supreme Court to, quote, limit the 3 availability of substantive due process claims to those which 4 are not covered under other amendments, unquote. Holland v. 5 City of New York, 197 F. Supp. 3d 529, 547 (Southern District 6 2016). Quote, where another provision of the Constitution 7 provides an explicit textual source of constitutional 8 protection, a court must assess a Plaintiff's claims under that 9 explicit provision and not under the more generalized notion of 10 substantive due process. Kia P. v. McIntyre, 235 F.3d, 749, 11 757 to 58. See Velez v. Levy, 401 F.3d, 75, at 94. Where the 12 court said, quote, where a specific constitutional provision 13 prohibits government action, Plaintiffs seeking redress for 14 that prohibited conduct in a Section 1983 suit cannot make 15 reference to the broad notion of substantive due process. And 16 Doyle v. Santiago, 2019 Westlaw 5298147, at page 5 (District of 17 Connecticut October 18, 2019) where the Court said, quote, If 18 the plaintiff's confinement ... is conscious-shocking, it would 19 violate the Eighth Amendment. Thus his claim should be 20 considered under the Eighth Amendment, not the Substantive Due 21 Process clause, unquote. Quote, in other words, what would 22 serve to raise Defendants' actions beyond the wrongful to the 23 unconscionable and shocking are facts, which, if proven, would 24 constitute in themselves specific constitutional violations, 25 unquote. Velez, 401 F.3d at 94.
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1

Although I note that the allegations in the FAC likely

2 satisfy the standards for SDP, I am foreclosed from analyzing

3 these allegations through SDP because the claims are, quote,

4 subsumed in the more particular allegations, unquote, of the

5 Eighth Amendment claim. Velez 94.

6

So to sum up. Governor Cuomo is dismissed as a Defendant.

7

Defendants' motion to dismiss on mootness grounds is

8 denied without prejudice to renewal to the extent Plaintiffs

9 claim the conditions into which they were released are not

10 sufficiently integrated.

11

Defendants' motion to dismiss is granted as to the

12 Substantive Due Process claim and otherwise denied.

13

The Clerk is to terminate Docket Motion No. 79 and to

14 terminate Governor Cuomo as a party.

15

I think we have October 2nd as a date for Defendants to

16 either answer the SAC or submit another premotion letter; am I

17 right about that? And remember to say your name before you

18 answer.

19

MR. HARBEN: I'm sorry. There was some yelling. The

20 electricity just went out in my house.

21

THE COURT: Am I right that October 2nd is the date

22 for either your answer or premotion letter addressed to the

23 SAC?

24

(Reporter interruption)

25

THE COURT: Yes. Mr. Harben, you've got to say --

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1 every time you speak, you've got to say your name, the first

2 word out of your mouth.

3

MR. HARBEN: I think we'd like to be able to order

4 this decision expedited so we can read it and just parse it out

5 a little bit. It's very long. There has to be -- because

6 there was a part about possibly the additional facts dealing

7 with some of the claims that you addressed today.

8

So I'm just -- the current deadline is October 2nd.

9 I'm wondering if we can get a little more time to process that

10 so we can -- at least can get -- review this transcript before

11 we finalize anything?

12

THE COURT: What date do you propose?

13

MR. HARBEN: Could we get another two weeks beyond

14 that?

15

THE COURT: Any objection on Plaintiffs' side to

16 October 16?

17

MS. LANDRISCINA: No objection, your Honor.

18

THE COURT: All right. So Defendants' answer or

19 pre-motion letter with respect to the Second Amended Complaint

20 will be due October 16. And if it's a premotion letter, I'll

21 set another conference.

22

In the meantime, sad to say we're losing Judge Smith

23 next Wednesday where she, a little too happily, is going into

24 retirement. No, I shouldn't say that. She's not 100 percent

25 happy about it. In fact, to the point where she volunteered to

Angela (Angie) Shaw-Crockett, CCR, CRR, RMR Official Court Reporter (914)390-4242

63

1 stay on a little longer if her replacement isn't cleared in

2 time.

3

But you will be transitioning to the new magistrate

4 judge and continuing to roll along with paper discovery. So I

5 don't think I need to -- I don't need to get involved with

6 that.

7

Is there anything else anybody wants to say before we

8 ring off?

9

MR. HARBEN: I guess on the issue of discovery, with

10 the new claims as we've written in the past about, we haven't

11 even gotten to the point of responding on that yet. That's

12 something we wanted to raise with the new magistrate and

13 potential stay.

14

THE COURT: Yeah, I mean, when we -- when we met way

15 back when, we agreed, I thought, that we were going to hold off

16 on depositions but proceed on paper discovery. And if there's

17 some reason why that's changed, you can take it up with the

18 magistrate judge.

19

But let me also -- I know this whole call is public.

20 But so I guess there's no point in going off the record, but

21 this is a good juncture, I think, in which the parties should,

22 again, try to resolve it. You know, the state says that

23 it's -- at least the original claims, the state says it's not

24 doing it anymore. I've just found that the record at this

25 stage is not sufficient for me to conclude that it's not

Angela (Angie) Shaw-Crockett, CCR, CRR, RMR Official Court Reporter (914)390-4242

64

1 happening anymore and it won't recur, but that could change

2 sooner rather than later. And the plaintiffs will have

3 achieved an important part of what they've asked for. I

4 recognize that the other part of what they've asked for, which

5 is to be released not into shelters or other undesirable

6 places, but into housing that actually addresses their needs,

7 is sort of now the new part two of the case.

8

But I think Plaintiffs also have to be realistic

9 about where the money is going to come from to solve these

10 problems. I don't doubt that OMH would be perfectly happy if

11 it had a blank check to create sufficient housing for released

12 prisoners with serious mental illness. But I don't see any

13 likelihood that there's a pot of gold for that in the short

14 term.

15

So I hope that when you start anew with Magistrate

16 Judge Krause, and even before that, that you'll discuss amongst

17 yourselves resolving at least some of the issues. If

18 Defendants can demonstrate to Plaintiffs that since this

19 briefing has occurred, things have changed in a way that would

20 satisfy them, maybe at least we can narrow the issues, if not

21 resolve the whole thing.

22

So I hope you'll continue to talk. I do think

23 there's a vibe here that the Defendants were trying to pick off

24 the named Plaintiffs. But at the same time, they did stop --

25 or they say they've stopped -- the challenged practice and

Angela (Angie) Shaw-Crockett, CCR, CRR, RMR Official Court Reporter (914)390-4242

65

1 that's really the gold ring here.

2

So I hope Plaintiffs, you know, don't lose the forest

3 for the trees. And if persuaded that that change has really

4 been made, they will have accomplished what they set out to

5 accomplish, at least, with the first two complaints and should

6 be pleased with that.

7

So I hope both sides will continue to talk and that

8 when you resume with the new magistrate judge, maybe you can

9 get somewhere. And I will await October 16, and see if we get

10 an answer or a premotion letter.

11

Anything else we should talk about? All right. I

12 hope everybody is healthy and remains so. Have a good weekend,

13 all. Take care.

14

(Proceedings concluded)

15

16

17

18

19

20

21

22

23

24

25

Angela (Angie) Shaw-Crockett, CCR, CRR, RMR Official Court Reporter (914)390-4242

 
 Case 7:19-cv-00639-CS-AEK Document 158 Filed 01/08/21 Page 1 of 31

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------------------ X

M.G., P.C., C.J., M.J., J.R., D.R., S.D., W.P.,

:

and D.H., individually and on behalf of all

:

similarly situated,

:

Plaintiffs, :

:

-against-

:

: 7:19-cv-00639 (CS) (AEK)

ANDREW CUOMO, in his official capacity as the :

Governor of the State of New York, the NEW

:

YORK STATE OFFICE OF MENTAL HEALTH, :

ANN MARIE T. SULLIVAN, in her official capacity :

as the Commissioner of the New York State Office of:

Mental Health, the NEW YORK STATE

:

DEPARTMENT OF CORRECTIONS AND

:

COMMUNITY SUPERVISION, ANTHONY J. :

ANNUCCI, in his official capacity as the Acting :

Commissioner of the New York State Department of :

Corrections and Community Supervision, ANNE :

MARIE MCGRATH, in her official capacity as

:

Deputy Commissioner of the New York State

:

Department of Corrections and Community

:

Supervision,

:

Defendants. :

------------------------------------------------------------------- X

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ PARTIAL MOTION TO DISMISS THE SECOND AMENDED COMPLAINT
LETITIA JAMES Attorney General State of New York Attorney for Defendants 28 Liberty Street New York, NY 10005 Tel.: (212) 416-6133/6185
JANE R. GOLDBERG JEB HARBEN Assistant Attorneys General
of Counsel

Case 7:19-cv-00639-CS-AEK Document 158 Filed 01/08/21 Page 2 of 31
TABLE OF CONTENTS Page
TABLE OF AUTHORITIES .........................................................................................................................ii PRELIMINARY STATEMENT....................................................................................................................1 STATEMENT OF THE CASE .....................................................................................................................3 Relevant Procedural History ............................................................................................................................3 The Parties ..........................................................................................................................................................4 A. Proposed Discharge Class Plaintiffs..................................................................................................4 B. Defendants ............................................................................................................................................5 Overview of New York’s Public Mental Health System..............................................................................5 Overview of DOCCS’s Role in Community Mental Health Services........................................................8 STANDARD OF REVIEW..........................................................................................................................11 ARGUMENT................................................................................................................................................... 12 I. THE PROPOSED DISCHARGE CLASS LACKS STANDING ...........................................12
A. The Discharge Class Plaintiffs Do Not Allege a Certainly Impending Injury....................13 B. Plaintiffs’ Risk of Institutionalization is Not Traceable to Defendants’ Actions ...............16 II. THE PROPOSED DISCHARGE CLASS FAILS TO STATE A CLAIM FOR VIOLATION OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT OR SECTION 504 OF THE REHABILITATION ACT.................................................................18 A. The Discharge Class Plaintiffs Do Not Plausibly Allege That They Were Denied Services
to Which they Were Legally Entitled Under the ADA or Rehab Act.................................19 B. The Discharge Class Plaintiffs Do Not Plausibly Allege They Have Been Placed in
Unlawfully Segregated Settings..................................................................................................22 CONCLUSION ............................................................................................................................................... 25
i

Case 7:19-cv-00639-CS-AEK Document 158 Filed 01/08/21 Page 3 of 31

TABLE OF AUTHORITIES

CASES

Page(s)

APWU v. Potter, 343 F.3d 619 (2d Cir. 2003).....................................................................................................................11

Ashcroft v. Iqbal, 556 U.S. 662 (2009)...................................................................................................................................11

Baker v. N.Y. State Dep’t of Corr. and Comm. Super., No. 17 Civ. 1270 (GTS), 2018 WL 357297 (N.D.N.Y. Jan. 10, 2018)..............................................22

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)...................................................................................................................................11

Ciaramella v. Zucker, 18-CV-6945 (JPO), 2019 WL 4805553 (S.D.N.Y. Sept. 30, 2019) ....................................................19

Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013)............................................................................................................................. 13-15

Davis v. Jackson, No. 15 Civ. 5359 (KMK), 2016 WL 5720811 (S.D.N.Y. Sept. 30, 2016)...........................................9

Davis v. Shah, 821 F.3d 231 (2d Cir. 2016) ........................................................................................................ 14, 16, 19

Dhinsa v. Krueger, 917 F.3d 70 (2d Cir. 2019) .......................................................................................................................12

Disabled in Action v. Bd. of Elections in N.Y., 752 F.3d 189 (2d Cir. 2014) .............................................................................................................. 12, 18

E.B. ex rel. M.B. v. Cuomo, No. 16-CV-735 (LJV), 2020 WL 3893928 (W.D.N.Y. July 11, 2020) .................................. 14, 19, 22

Eaves v. Designs for Finance, Inc., 785 F. Supp. 2d 229 (S.D.N.Y. 2011)....................................................................................................... 7

Fernandez v. Zoni Language Ctr., Inc., No. 15-CV-5055 (PKC), 2016 WL 2903274 (S.D.N.Y. May 18, 2016) .............................................. 5

Franza v. Stanford, No. 16 Civ. 7625 (KMK), 2018 WL 914782 (S.D.N.Y. Feb. 14, 2018)............................................22

Gonzalez v. Annucci, 32 N.Y.3d 461 (2018) ...............................................................................................................................21

ii

Case 7:19-cv-00639-CS-AEK Document 158 Filed 01/08/21 Page 4 of 31
Henrietta D. v. Bloomberg, 331 F. 3d 261 (2d Cir. 2003)............................................................................................................. 12, 18
Hesse v. Godiva Chocolatier, 463 F. Supp. 3d 453 (S.D.N.Y. 2020)....................................................................................................... 5
Jenkins v. New York City Dep’t of Homeless Services, 643 F. Supp. 2d 507 (S.D.N.Y. 2009), aff’d 391 Fed. App’x 81 (2d Cir. 2010).................................24
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992).......................................................................................................................13, 16-17
McElwee v. County of Orange, 700 F.3d 635 (2d Cir. 2012) .............................................................................................................. 12, 18
McNiece v. Connecticut, 692 Fed. App’x 655 (2d Cir. 2017) .........................................................................................................18
Mental Hygiene Legal Serv. on Behalf of Oliviah CC. v. Delaney, 176 A.D.3d 24 (2019), leave to appeal granted sub nom. Mental Hygiene Legal Serv. v. Delaney, 35 N.Y.3d 912 (2020).................................................................................................................20
Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167 (2d Cir. 2008), aff’d, 561 U.S. 247 (2010) .......................................................................11
Nielsen v. Rabin, 746 F.3d 58 (2d Cir. 2014) .......................................................................................................................11
Olmstead v. L.C., 527 U.S. 581 S. S. Ct. 2176 (1999) ....................................................................................................passim
Phelan v. Zenzen, No. 10 Civ. 6704, 2012 WL 5420423 (W.D.N.Y. Nov. 6, 2012) ......................................................... 9
Spavone v. New York State Dep’t of Corr. Servs., 719 F.3d 127 (2d Cir. 2013) ....................................................................................................................... 9
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ..............................................................................................................................12
Steimel v. Wernert, 823 F.3d 902 (7th Cir. 2016)....................................................................................................................23
Waskul v. Washtenaw Cty. Cmty. Mental Health, 979 F.3d 426 (6th Cir. 2020)....................................................................................................................23
Weiss v. Inc. Vill. of Sag Harbor, 762 F. Supp. 2d 560 (E.D.N.Y. 2011)......................................................................................................7
iii

Case 7:19-cv-00639-CS-AEK Document 158 Filed 01/08/21 Page 5 of 31
Williams v. Fisher, No. 11 Civ. 379 (NAM), 2015 WL 1137644 (N.D.N.Y. Mar. 11, 2015) ............................................ 9
Woods v. Tompkins Cty., No. 16-CV-0007 (LEK) (TWD), 2019 WL 1409979 (N.D.N.Y. Mar. 28, 2019), aff’d, 804 F. App’x 94 (2d Cir. 2020)................................................................................................ 18, 20
CONSTITUTIONS Eighth Amendment ........................................................................................................................................... 3
Fourteenth Amendment ................................................................................................................................... 3
U.S. Const. art. III, § 2 ..................................................................................................................................................12 Article III..............................................................................................................................................passim
FEDERAL STATUTES 29 U.S.C. § 504, 749 (a), 794 ............................................................................................................... 2, 12, 18
Americans with Disabilities Act Title II, 42 U.S.C.
§ 12132.......................................................................................................................................2, 12, 18, 20
FEDERAL RULES Federal Rules of Civil Procedure
Rule 12(b)(1) ..........................................................................................................................................1, 11 Rule 12(b)(6) ..........................................................................................................................................1, 11 Rule 41(a)()(A)(i) ......................................................................................................................................... 1
Federal Rules of Evidence Rule 201........................................................................................................................................................5
FEDERAL REGULATIONS 28 C.F. R.
§ 35.130(b)(6).............................................................................................................................................20
STATE STATUTES New York Mental Hygiene Law
§ 1.03(52) ..................................................................................................................................................1, 7 § 5.07 ............................................................................................................................................................. 5 § 41.13.........................................................................................................................................................20 § 404(4) ...................................................................................................................................................9, 10
iv

Case 7:19-cv-00639-CS-AEK Document 158 Filed 01/08/21 Page 6 of 31 N.Y. Correction Law
§ 71(a)............................................................................................................................................................9 § 137 (6) (e) .................................................................................................................................................. 8 § 201(5) ................................................................................................................................................ 10, 21 § 401.1...........................................................................................................................................................8 N.Y. Executive Law § 259-i(2)(b)..................................................................................................................................................9 N.Y. Penal Law §§ 70.40 and 70.45 (McKinney 2009 & Supp. 2019) ............................................................................. 9 STATE REGULATIONS 14 N.Y.C.R.R. 527.2 (g) .................................................................................................................................... 8
v

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Defendants, New York State Office of Mental Health (“OMH”), Ann Marie T. Sullivan, in her official capacity as the Commissioner of OMH, the New York State Department of Corrections and Community Supervision (“DOCCS”), Anthony J. Annucci, in his official capacity as the Acting Commissioner of DOCCS, and Anne Marie McGrath, in her official capacity as Deputy Commissioner of DOCCS,1 respectfully submit this memorandum of law, together with the accompanying Declaration of Jeb Harben (“Harben Decl.”) and the exhibits annexed thereto, in support of their partial motion to dismiss the Second Amended Class Action Complaint (“SAC”) (ECF No. 134) pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
PRELIMINARY STATEMENT In the SAC, Plaintiffs radically altered the scope of this lawsuit, effectively bringing an entirely new set of claims with a substantially new proposed class. Previously, the principal issue in dispute was whether certain inmates diagnosed with Serious Mental Illness (“SMI”), as defined by New York Mental Hygiene Law (“MHL”) § 1.03(52), who were not subject to housing restrictions based on their status as sex offenders, were being improperly held in State prisons past their scheduled release dates when they anticipated either completing their sentences or being placed on parole or post-release supervision (collectively, “parole supervision”). A secondary issue previously in dispute was whether a sub-set of those SMI inmates were appropriately placed in structured temporary housing such as Transitional Living Residences (“TLR”) upon their release, which had been done to allow them to more easily transition to live in the community after sometimes lengthy periods of incarceration, because such temporary housing was, allegedly, too restrictive and not sufficiently integrated. The claims now asserted in the SAC on behalf of a proposed “Discharge Class” are far broader, as three additional Plaintiffs (“Discharge Class Plaintiffs”) assert that Defendants have
1 Plaintiffs voluntarily dismissed Governor Andrew M. Cuomo as a Defendant, pursuant to Fed. R. Civ. P. 41(a), on December 7, 2020. (ECF No. 149).

Case 7:19-cv-00639-CS-AEK Document 158 Filed 01/08/21 Page 8 of 31
violated their rights under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 (“ADA”) and the Rehabilitation Act, 29 U.S.C. § 794 (“Rehab Act”) by releasing them to community housing that they deem not sufficiently integrated and/or not timely providing the care and treatment that they allegedly require. The SAC effectively argues that the State is statutorily obligated to provide all SMI parolees who may be homeless with their own apartments at State expense and that the failure to do so constitutes a violation of the ADA and Rehab Act. Such a requirement clearly goes beyond the State’s statutory obligations as interpreted in Olmstead v. L.C., 527 U.S. 581, 119 S. S. Ct. 2176 (1999), and its progeny. Contrary to the holding in Olmstead, the SAC also seeks to nullify the clinical judgment of professionals who have determined that specific outpatient treatment of SMI parolees is clinically appropriate and, instead, impose outpatient treatment requirements such as the provision of Assertive Community Treatment (“ACT”) teams to all SMI parolees, a process that is currently reserved for the most severe cases of SMI.2 None of the complaints by the Discharge Class Plaintiffs amount to violations of the ADA or Rehab Act.
As demonstrated below, the Discharge Class Plaintiffs do not have standing to bring such claims as they fail to allege any certainly impending injury from their release to community shelters while waitlisted for other housing. (See Point I, infra). To the contrary, their claims are premised on an attenuated and speculative chain of inferences of the kind that the U.S. Supreme Court has rejected as a basis for standing. Furthermore, their risk of institutionalization claims are not traceable to Defendants’ actions, but rather to the actions of third parties or to Plaintiffs’ own conduct. Moreover, the Discharge Class Plaintiffs cannot plausibly allege that they were denied housing and/or services to which they were legally entitled to under the ADA or Rehab Act, nor can they plausibly allege they
2 See Utilization Management (UM) Guidelines for New York State Medicaid Managed Care Organizations (MMCO) and Health and Recovery Plans (HARP) regarding Assertive Community Treatment (ACT), available at https://omh.ny.gov/bho/policy-guidance/nys_act_um_ guidance.pdf.
2

Case 7:19-cv-00639-CS-AEK Document 158 Filed 01/08/21 Page 9 of 31
were confined to unlawfully segregated settings in violation of the integration mandate. (See Point II, infra). Neither the ADA nor the Rehab Act creates a legal entitlement to community-based mental health housing. Here, it is undisputed that the Discharge Class Plaintiffs were released to the community, provided shelter, and waitlisted for housing, SAC ¶¶ 232, 320, 334—a result that reflects clinical determinations as to their ability to function in the community and does not violate the ADA or Rehab Act. Their complaints about the temporary placements to which they were assigned, such as “limited privacy” and shared facilities, demonstrate that the Discharge Class Plaintiffs believe that they are entitled to their own apartments at State expense, a result clearly not contemplated by the narrow holding of Olmstead.
The claims of the proposed Discharge Class Plaintiffs should therefore be dismissed. STATEMENT OF THE CASE
Relevant Procedural History This case commenced with the filing of a Complaint (ECF No. 1) on January 23, 2019, brought
by six SMI inmates who alleged that their terms of incarceration were prolonged in violation of the ADA and Rehab Act. Four of the Plaintiffs, who had begun terms of post release supervision, also claimed that their constitutional rights under the Eighth and Fourteenth Amendments had been violated. Following a pre-motion conference on May 13, 2019, Plaintiffs filed an Amended Complaint (ECF No. 47), and subsequently a Second Amended Complaint (ECF No. 134), on behalf of the original six Plaintiffs and three additional Plaintiffs.3
3 On September 25, 2020, the Court granted, in part, Defendants’ motion to dismiss the First Amended Complaint as to Plaintiffs’ Fourteenth Amendment substantive due process claim and dismissed Governor Cuomo as a defendant (ECF No. 149). As previously noted, on December 7, 2020, Plaintiffs filed a Notice of Voluntary Dismissal of Governor Cuomo as a defendant, which was so-ordered by the Court (ECF Nos. 148-149).
3

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The Parties A. Proposed Discharge Class Plaintiffs The SAC incorporates the allegations set forth in the First Amended Complaint and, as
relevant to the instant motion, adds allegations on behalf of a new putative class of SMI parolees who have been or will be released from prison to homeless shelters, hotels, motels and DOCCS parole housing. SAC ¶ 542. Three of the named Plaintiffs are representatives of this new putative class.4 This proposed Discharge Class, which appears to include even sex offenders who require SARA-compliant housing, is defined as follows:
The Discharge Class consists of all persons (1) with serious mental illness, (2) who are or will be appropriate for and desire community-based mental health housing and supportive services upon their release from state prison, (3) who, upon their release, do not receive such services, and (4) who reside in segregated setting or who are at serious risk of becoming institutionalized. SAC ¶ 698. The Discharge Class Plaintiffs allege that Defendants have discriminated against them in violation of the ADA and Rehab Act, SAC ¶¶ 752-774, and contend that their releases to shelters were not based “on Defendants’ determination that such placements [were] clinically necessary.” SAC ¶ 637. They further allege that Defendants have the responsibility for developing community-based mental health housing programs and supportive services for them, as well as responsibility for preparing inmates with SMI for their release from prison, SAC ¶¶ 18, 420, 439. They claim that the release of individuals from prison to the shelter system without housing or supportive services exposes the putative class to a serious risk of psychiatric harm and decompensation, putting them at risk of
4 The Plaintiffs are identified as S.D., W.P. and D.H. The specific allegations concerning them are set forth in the SAC at ¶¶ 216-277 (S.D.), 278-322 (W.P.) and 323-353 (D.H.), and are too prolix to be detailed here. By way of example, however, D.H. was reincarcerated and released several times, including once to his grandmother’s residence and once to parole housing. SAC ¶¶ 336, 339. The allegation is that OMH failed to provide necessary support services to him while in the community. SAC ¶¶ 430-41, thus impairing D.H.’s ability to manage his needs and “cope with the demanding requirements of his DOCCS parole officer.” Id. ¶ 342.
4

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institutionalization. Plaintiffs also allege that discharges to the shelter system segregates them from

the community. SAC ¶¶ 532-628. Plaintiffs similarly criticize the release of inmates with serious mental

illness to Transitional Living Residences (“TLRs”) or Crisis Centers as not being integrated settings.

SAC ¶¶ 602-628. Plaintiffs allege that Defendants “can reasonably accommodate Plaintiffs need to

receive services in an integrated community setting” without unreasonable costs by reallocating

funding from DOCCS to OMH. SAC ¶¶ 653-659. Plaintiffs seek permanent injunctive relief.

B. Defendants

Ann Marie T. Sullivan is the Commissioner of the New York State Office of Mental Health

(“OMH”). Anthony J. Annucci is the Acting Commissioner of the New York State Department of

Corrections and Community Supervision (“DOCCS”). Anne Marie McGrath is Deputy

Commissioner of DOCCS.

Overview of New York’s Public Mental Health System

OMH oversees New York’s public mental health system, which includes all mental health

programs that are licensed, regulated, operated, funded, or approved by OMH. See OMH’s Statewide

Comprehensive

Plan

2016-2020

(“Statewide

Plan”),

available

at

https://omh.ny.gov/omhweb/planning/docs/507-plan.pdf.5 OMH provides services and support to

more than 700,000 New Yorkers. OMH’s mission to promote the mental health of all New Yorkers

requires the provision of a vast array of inpatient and outpatient services in collaboration and

coordination with local government entities (57 counties and New York City) and other agencies as

required by MHL § 5.07.6 Over the past several years, OMH and other New York State health care

5 The Court may properly take judicial notice of the facts set forth in the Statewide Plan pursuant to Rule 201 of the Federal Rules of Evidence, as well as other information contained on State agency websites referenced herein “where the authenticity of the site has not been questioned.” See Hesse v. Godiva Chocolatier, 463 F. Supp. 3d 453, 463 (S.D.N.Y. 2020) (citing Fernandez v. Zoni Language Ctr., Inc., No. 15-CV-5055 (PKC), 2016 WL 2903274, at *3 (S.D.N.Y. May 18, 2016)). 6 MHL § 5.07 requires OMH to develop a comprehensive plan for the provision of services. This is
5

Case 7:19-cv-00639-CS-AEK Document 158 Filed 01/08/21 Page 12 of 31
agencies, have transformed the delivery of health care services, including mental health services, to a system of managed care. See OMH’s Transformation Plan, available at https://omh.ny.gov/omhweb/transformation/. As of November 2019, this transformation resulted in a 15% increase in Medicaid-covered individuals receiving OMH-licensed outpatient services and a 7% increase in OMH funded and/or operated housing beds.7
Most people are served by voluntary programs, including those that are county-operated (Statewide Plan p. 5), of which there are approximately 2600 unlicensed programs (Statewide Plan p. 11).8 There are also approximately 2,000 licensed programs. (Statewide Plan p. 10). OMH operates and regulates approximately 800 outpatient programs, including Assertive Community Treatment (“ACT”) teams, Personalized Recovery Oriented Services (“PROS”) programs, Article 31 clinics and Day Treatment. (Statewide Plan p. 12). OMH’s ACT Guidelines make clear that ACT is reserved for individuals with serious mental illness (“SMI”) whose needs have not been met by other approaches. OMH requires all referrals to be reviewed and assigned by a county Single Point of Access (“SPOA”) entity under contract with the local governmental entity.9 As of November 2019, OMH had expanded the ACT program to 108 teams statewide.10 As of December 2020, over six thousand individuals were
done in part together with two other agencies, the New York State Office of Addiction Services and Supports (“OASAS”) and the New York State Office for People with Developmental Disabilities (“OPWDD”), by analyzing local service plans developed by each county and New York City pursuant to planning guidelines issued by the three agencies. (Statewide Plan p. 17). 7 See OMH Statewide Town Hall November 19, 2019 Presentation (“Town Hall Mtg.”) pp. 10-12, available at https://omh.ny.gov/omhweb/planning/507/2019townhallpresentation.pdf. 8 These unlicensed programs include care coordination, crisis services, education, forensic, general support, housing, self-help, vocational and some emergency programs. (Statewide Plan p. 11). 9 See Utilization Management (UM) Guidelines for New York State Medicaid Managed Care Organizations (MMCO)and Health and Recovery Plans (HARP) regarding Assertive Community Treatment (ACT), available at https://omh.ny.gov/bho/policy-guidance/nys_act_um_ guidance.pdf. 10 See Town Hall Mtg. p. 11.
6

Case 7:19-cv-00639-CS-AEK Document 158 Filed 01/08/21 Page 13 of 31
enrolled in ACT statewide.11
OMH funds or operates more than 40,000 units of housing for people in the public mental
health system.12 As of November 2019, there were over 2,200 units in the pipeline. (Town Hall Mtg.
p. 12). Types of housing includes supportive housing, of which there are several types including
scattered-site supportive housing, single-site supportive housing, and supportive single-room-
occupancy housing.13 OMH’s target population for supportive housing is individuals with a primary
diagnosis of SMI and one of the following: SSI or SSDI due to mental illness; extended impairment in
functioning due to mental illness; or reliance on psychiatric treatment, rehabilitation and supports. 14
Within the State prison system, among other things, OMH provides mental health care and
treatment and pre-release planning for individuals who are approaching release from prison. The
discharge planning process is summarized by Commissioner Sullivan as follows:15
[T]he CNYPC Pre-Release Services staff conducts a multi-tier level of review within 90 days of release to determine if an individual inmate with Serious Mental Illness (“SMI”), as defined by MHL § 1.03(52), who is at risk of homelessness, is psychiatrically stable for community release, and if release to community mental health housing is clinically necessary or if they can be released to other types of housing, including shelters.
11 Data concerning the provision of ACT services is annexed to the Harben Decl. as Exhibit A and available at https://omh.ny.gov/omhweb/ tableau/act.html. 12 The statistics showing the numbers of each type of housing is set forth in the Statewide Summary of Residential Program Indicators annexed to the Harben Decl. as Exhibit B and available at https://omh.ny.gov/omhweb/statistics/index.html. 13 Descriptions of OMH’s adult housing may be found on OMH’s website and is available at https://my.omh.ny.gov/analytics/saw.dll?dashboard&PortalPath=%2Fshared%2FAdult%20Housi ng%2F_portal%2FAdult%20Housing&nquser=BI_Guest&nqpassword=Public123#metric 14 See OMH’s 2019 Supportive Housing Guidelines p. 30, available at https://omh.ny.gov/omhweb/adults/supportedhousing/supportive_housing_guidelines.pdf 15 As Plaintiffs’ pleadings refer to matters already disclosed through limited discovery in this case— e.g., SAC ¶ 605, which quotes a partial supplementary response to an interrogatory—Defendant Sullivan’s sworn answer to an interrogatory is permissibly quoted here. See Eaves v. Designs for Finance, Inc., 785 F. Supp. 2d 229, 244 (S.D.N.Y. 2011) (quoting Weiss v. Inc. Vill. of Sag Harbor, 762 F. Supp. 2d 560, 567 (E.D.N.Y. 2011).
7

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This review begins in the correctional facility with the designation of a Pre-Release Coordinator who works individually with inmate patients to discuss their discharge needs, housing, treatment options, as well as assist with their anticipated release to the community. The inmate patient also continues to work with his or her assigned multidisciplinary corrections-based treatment team to address his or her behavioral health needs. There is a continuous clinical assessment of mental status, suicidal thoughts and/or behavior, risk for violence to self and/or others and level of psychiatric care and housing required when transitioning out of an institutional setting.
Additionally, CNYPC has another level of centralized clinical review conducted by Albany Pre-Release Services staff and CNYPC clinical leadership for all inmate patients who have an S designation, as defined at Correction Law Section 137 (6) (e), in the DOCCS system as their release approaches. This review includes review of past psychiatric history, previous hospitalizations, treatment compliance, presentation and behavior during incarceration, prior criminal behavior and arrests, criteria for Assisted Outpatient Treatment (AOT), and current psychiatric stability, all to inform the discharge plan. During this review, the Albany Pre-Release Service staff continues to receive input and updates from the treatment team at the correctional facility that is currently treating the patient, concerning the patient’s clinical needs and stability. During this review, the need for inpatient treatment is considered.
Finally, all of these formulated inmate patient discharge plans undergo a management level review at Albany Pre-Release Services. If it is determined that an individual appears appropriate for AOT, then the individual’s plan will be reviewed by a specific AOT committee. Furthermore, individual discharge plans where a clinical professional has determined that there is a risk of mental health decompensation upon release of the individual to the community, and a decision has not yet been reached whether to pursue AOT, will undergo a more intensive review by the Specialized Review Committee, consisting of the Pre-Release Services Unit Chief and the Medical Director of the Division of Forensic Services.
At this time, final recommendations and determinations for level of care and treatment upon release to the community are made and are discussed with the corrections-based treatment team to ensure appropriate referrals and interviews with community providers. This will include the determination that the inmate patient is psychiatrically stable for community release even if that includes release to a shelter.
See Harben Decl., Exhibit C.
Overview of DOCCS’s Role in Community Mental Health Services
DOCCS and OMH share responsibility for the appropriate care and treatment of inmates with
mental illness who do not require hospitalization. N.Y. Corr. Law § 401.1; 14 N.Y.C.R.R. 527.2 (g).
Consistent with the goal of providing appropriate care and treatment, DOCCS develops an
individualized case management plan for each inmate to promote his or her rehabilitation. These plans
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may be developed in consultation with OMH, if the inmate utilizes mental health services, or other state agencies, depending on the inmate’s needs. N.Y. Corr. Law § 71(a). Inmates who have received mental health treatment within three years of their anticipated release receive mental health discharge planning, and, if needed, an appointment with a mental health professional in the community, and sufficient medication to bridge the period between discharge and the assumption of care by a mental health professional in the community. Id. § 404(4). For such inmates, OMH provides discharge planning in collaboration with DOCCS, pursuant to a Memorandum of Understanding (“MOU”), which has been produced to Plaintiffs.16
For individuals who have been paroled, conditionally released or released to post-release supervision from a DOCCS facility or an institution under the jurisdiction of OMH, DOCCS retains legal custody until the expiration of the maximum period of their sentence or period of post-release supervision.17 N.Y. Exec. Law § 259-i(2)(b). DOCCS has trained and assigned staff to work on discharge planning and collaborating with Community Supervision (parole officers). See Directive 9000 annexed to Harben Decl. as Exhibit D. In addition, DOCCS’s Bureau of Mental Health and Health Services have DOCCS staff assigned to work on coordinating services in the community for those being released to the community, including parole officers with special training in supervising persons with mental illness.18 Id. Parole officers prepare for the release of inmates with mental illness
16 See Spavone v. New York State Dep’t of Corr. Servs., 719 F.3d 127, 130 (2d Cir. 2013) for a description of the MOU. 17 Inmates may, under statutorily specified circumstances, be released on parole, conditional release or post-release supervision. See N.Y. Penal Law §§ 70.40 and 70.45. Such released individuals are subject to conditions of release and post-release supervision imposed by the Board of Parole and remain under the supervision of DOCCS for the unserved portion of their prison term or period of postrelease supervision. Id. 18 Judicial notice of DOCCS directives is proper here. For example, in Davis v. Jackson, No. 15 Civ. 5359 (KMK), 2016 WL 5720811, at *1, n.3 (S.D.N.Y. Sept. 30, 2016), the Court took judicial notice of DOCCS Directive 4002, citing to it on the DOCCS website. See also Williams v. Fisher, No. 11 Civ. 379 (NAM), 2015 WL 1137644, at * 4, n.7 (N.D.N.Y. Mar. 11, 2015) (judicial notice taken of DOCCS Directive 4202); Phelan v. Zenzen (CJS), No. 10 Civ. 6704, 2012 WL 5420423, at *4 (W.D.N.Y. Nov. 6,
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by reviewing all available relevant materials, “including any discharge plan,” and when an inmate has been released, their parole officer “will confirm that the parolee has been released with any prescribed medications, prescriptions and a Medication Grant Program (MGP) card, if applicable” and “review any Assisted Outpatient Treatment (AOT) order in the case and will confirm with the parolee the requirements of any such order.” See DOCCS Directive 9230 IV(A)(1)(a), (g), and (h), annexed to Harben Decl. as Exhibit E. The parole officer will complete an Individualized Supervision Plan “within 10 business days of release” and review that plan with any treatment provider included in the plan and other relevant persons. Id. at (j) and (l).
In addition to assistance with post-release mental health treatment, DOCCS assists inmates eligible for or on community supervision with securing housing. N.Y. Corr. Law § 201(5). Assigned parole officers work with DOCCS re-entry staff, who assist in securing housing, enrolling in treatment (including mental health treatment), accessing skills programs, and in finding employment. See Harben Decl. Exhibit C and DOCCS Re-Entry Services, available at https://doccs.ny.gov/re-entry-services. Re-entry staff also work with the New York State Department of Criminal Justice Services’ (“DCJS”) County Re-Entry Task Force, county governments, other state agencies, and community-based organizations in securing housing referrals, mental health counseling, and many other services. Id. Ultimately, however, an inmate is also expected to make efforts to secure their own housing in addition to any assistance provided by DOCCS and other entities. See DOCCS Community Supervision Handbook p. 16 (“What Is Community Preparation And An Inmate’s Role In It?”), available at https://doccs.ny.gov/community-supervision-handbook.
An individual’s assigned parole officer “must approve any residence where the inmate or the parolee proposes to reside and will conduct an investigation of that residence to make sure it is a
2012) (judicial notice taken of DOCCS Directive 4421).
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suitable place, does not violate any of the conditions of release, and will not impede the parolee’s ability to successfully complete parole or the period of post-release supervision.” Id. at p. 18 (“What Happens If An Inmate Is Released And Cannot Find A Permanent Residence?”). The role of the assigned parole officer “is to assist the parolee with transitioning to community supervision, to monitor compliance with the conditions of release, and to ensure the safety of crime victims and the general public.” Id. at p. 18 (“What Are the Responsibilities of a PO?”).
STANDARD OF REVIEW State Defendants move to dismiss the SAC, in part, for lack of subject matter jurisdiction under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. On a motion under Rule 12(b)(1), Plaintiffs have the burden of demonstrating by a preponderance of the evidence that jurisdiction exists. Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff’d, 561 U.S. 247 (2010). The court accepts all factual allegations as true, but “jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.” APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003). In determining a Rule 12(b)(1) motion, therefore, the court “has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits.” Id. at 627. To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter [] to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Defendants bear the burden of showing failure to state a claim and the court must accept as true all of the factual allegations contained in the complaint. However, the court is not required to credit conclusory allegations or legal conclusions as factual. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014).
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ARGUMENT The Discharge Class Plaintiffs purport to bring two causes of action – one under Title II of the ADA and one under Title V of the Rehab Act. Although there are “subtle differences between the [A]cts,” the purpose of both statutes is to prevent discrimination based upon disability and, as a result, courts generally apply the same legal standards for claims arising under Title II of the ADA and Title V of the Rehab Act. Disabled in Action v. Bd. of Elections in N.Y., 752 F.3d 189, 196 (2d Cir. 2014); McElwee v. County of Orange, 700 F.3d 635, 640 (2d Cir. 2012); Henrietta D. v. Bloomberg, 331 F. 3d 261, 271 (2d Cir. 2003). The Discharge Class Plaintiffs contend that their alleged entitlement to Statefunded housing and services of their own preference is derived from Title II of the ADA, which 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 such entity,” 42 U.S.C. § 12132, and the Rehab Act, which contains a similar provision, 29 U.S.C. § 749 (a). The seminal case interpreting these statutory provisions is Olmstead v. L.C., 527 U.S. at 602, in which the Supreme Court made clear that in considering the appropriateness of community-based placement, the State may rely on the assessment of its own professionals. I. THE PROPOSED DISCHARGE CLASS LACKS STANDING Article III of the Constitution “limits the federal courts’ power to the resolution of ‘Cases’ and ‘Controversies.’” Dhinsa v. Krueger, 917 F.3d 70, 77 (2d Cir. 2019) (citing U.S. Const. art. III, § 2). A litigant who invokes federal jurisdiction therefore “must demonstrate standing to sue,” consisting of three elements: “the individual initiating the suit ‘must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.’” Id. (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)). Standing “evaluates a litigant’s personal stake as of the outset of litigation.” Id. (internal quotation omitted).
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The injury in fact requirement may only be satisfied by an injury that is “concrete, particularized, and actual or imminent[.]” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (internal citation omitted). Where “there is no actual harm, . . . its imminence (though not its precise extent) must be established.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 n.2 (1992). The “threatened injury must be certainly impending to constitute injury in fact,” and, thus, “[a]llegations of possible future injury are not sufficient.” Clapper, 568 U.S. at 409 (internal quotation marks and citations alterations omitted) (emphasis in original). Nor may a plaintiff proceed based on allegations that rely on an “attenuated chain of inferences necessary to find harm[.]” Clapper, 568 U.S. at 414. The plaintiff “bear[s] the burden of pleading and proving concrete facts showing that the defendant’s actual action has caused the substantial risk of harm,” and may not “rely on speculation about ‘the unfettered choices made by independent actors not before the court.’” Id. (quoting Lujan, 504 U.S. at 562).
Here, the Discharge Class Plaintiffs allege two speculative injuries. First, they allege that Defendants have failed to immediately provide them with the specific community mental health services they have requested, which they claim “create[s] serious risks that [the Discharge Class Plaintiffs] will suffer psychiatric harms and, as a result, face unnecessary segregation in psychiatric hospitals” or other institutional settings. SAC ¶ 601. Second, they allege that Defendants have injured them by offering community housing in settings that are allegedly “segregated and institutional.” Id. ¶ 602.
As demonstrated below, Plaintiffs’ alleged risk of institutionalization injury does not satisfy Article III standing. First, the Discharge Class Plaintiffs’ predictions regarding a possible risk of future institutionalization are not a “certainly impending” injury. Second, the alleged risk of institutionalization is not traceable to Defendants’ conduct.
A. The Discharge Class Plaintiffs Do Not Allege a Certainly Impending Injury The Discharge Class Plaintiffs’ first theory of injury is that the Defendants have not
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immediately provided them with the particular community services they have requested, which they claim injures them by creating a risk that they might decompensate and subsequently require further care in an institutional setting. SAC ¶¶ 584-86. This theory fails Article III’s injury in fact requirement.
The Discharge Class Plaintiffs primarily rely on the Second Circuit’s holding in Davis v. Shah, 821 F.3d 231 (2d Cir. 2016) in support of their risk of institutionalization theory of injury. SAC ¶ 391. In Davis, the plaintiffs were individuals with disabilities who challenged New York’s coverage restrictions on certain medical services provided under its Medicaid plan. New York had “restrict[ed] coverage” of certain medical services, providing coverage only to individuals with “a narrow set of medical conditions.” Id. at 261. Disabled persons, including the plaintiffs, who did not “happen to suffer from those enumerated ailments are thus denied access to medically necessary assistance directly on the grounds of their disabling conditions.” Id. The Second Circuit found that it was “undisputed that at least some of the plaintiffs suffer from disabilities, which could be ameliorated by the services New York now denies to them, and that, without those services, would lead to their institutionalization.” Id. (emphasis added). Given the undisputed allegation that the coverage restriction “would lead” to institutionalization, the Second Circuit found that the plaintiffs had alleged “an injury sufficient to carry plaintiffs’ integration mandate claim.” Id. at 263-64.
While Davis holds that the “risk of institutionalization” can form the basis for an ADA claim, Article III standing principles still control. A plaintiff who alleges a risk of future institutionalization may not avoid the constitutional requirement of showing that the injury is “actual or imminent,” “certainly impending,” and not based on an “attenuated chain of inferences.” Clapper, 568 U.S. at 409, 414 (emphasis in original). The Western District of New York recently considered precisely this issue in E.B. ex rel. M.B. v. Cuomo, No. 16-CV-735 (LJV), 2020 WL 3893928 (W.D.N.Y. July 11, 2020). In that case, the plaintiffs were individuals with developmental disabilities who alleged that they were living in the community with family or other caregivers. Id. at *1. The plaintiffs alleged that New York
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State had denied them access to supported, community-based residential placements, which allegedly “violate[d] the integration mandate because it place[d] [the plaintiffs] at unacceptable risk of institutionalization.” Id. at *5. While the court acknowledged the holding in Davis, it found that the plaintiffs’ allegations of possible future institutionalization were “too tenuous to establish standing.” Id. at *6. That was because the plaintiffs had merely alleged a chain of inferences: “that their caregivers may become unable to provide care; that they then may not receive one of the 1,500 available supported, community-based residential placements. . .; and that their health and welfare then may deteriorate to such a level that they require institutional care.” Id. Because this “hypothetical chain of events [fell] short of demonstrating a ‘certainly impending’ risk of injury,” the court found that the plaintiffs did not have Article III standing. Id.
Likewise, the Discharge Class Plaintiffs have failed to allege a certainly impending injury. They instead rely on speculation that by not receiving the requested services immediately upon release from prison, they may face some increased chance of future hospitalization or incarceration. The SAC repeatedly uses hedged, conditional language to describe the likelihood of this speculative future injury, referring variously to a “serious risk[]” of injury or merely a “heightened risk[].” SAC ¶¶ 584, 596, 601. In support of this claim, the Plaintiffs cite studies that allegedly show that the absence of the requested services “can exacerbate mental illness,” may “reduce[] negative outcomes,” and “may well influence the success in the community of this population.” Id. ¶¶ 597-98 (emphasis added). These vague and cautious statements amount to mere “[a]llegations of possible future injury” that “are not sufficient” to establish standing. Clapper, 568 U.S. at 409 (emphasis in original).
The allegations of Plaintiff W.P. demonstrate this deficiency. W.P. alleges that he has been provided with housing at a mental health shelter while he is waiting for a different housing placement. SAC ¶¶ 303-11. While W.P. has access to case managers, doctors, and nurses, he alleges that his current housing “greatly increases the risk that [he] will suffer a mental health crisis resulting in hospitalization,
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or an episode that endangers his parole status.” Id. ¶¶ 304, 317. See also id. ¶ 321 (alleging that his current housing causes a “greater likelihood that [W.P.’s] mental health will deteriorate further, resulting in institutionalization or reincarceration”). Because W.P. alleges the mere possibility of future injury—some unquantified “greater likelihood” of harm—rather than an injury that is “certainly impending,” he does not have standing to bring such claims.
B. Plaintiffs’ Risk of Institutionalization is Not Traceable to Defendants’ Actions In addition to the Discharge Class Plaintiffs’ failure to allege a concrete and certainly impending injury, the harm they allege is not traceable to Defendants’ conduct. To satisfy Article III standing, a plaintiff must show “a causal connection between the injury and the conduct complained of—the injury has to be fairly trace[able] to the challenged action of the defendant, and not th[e] result [of] the independent action of some third party not before the court.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal citation omitted). The Discharge Class Plaintiffs have not met the traceability requirement. Indeed, they allege that each Plaintiff has a long history of serious mental illness and institutionalization, predating the events at issue here. SAC ¶¶ 218-21, 283-84, 325-29. Because they cannot plausibly allege that Defendants created the risk that their illness may lead to some future hospitalization or incarceration, they instead contend that by failing to immediately provide the specific services they demand, Defendants have “heightened” this preexisting risk. SAC ¶ 596. But the SAC does not explain how much of the alleged risk of harm is due to Defendants’ purported conduct, as opposed to the baseline risk of institutionalization caused by Plaintiffs’ serious mental illnesses and other factors. The allegations here are thus distinguishable from those in Davis, where it was undisputed that the defendants’ decision not to cover the requested services “would lead” directly to the plaintiffs’ injury. 821 F.3d at 261. This pleading deficiency precludes the claims of S.D. and D.H., the two proposed Discharge
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Class representatives who allege that they have already been injured because they decompensated upon release from prison and no longer reside in the community. SAC ¶¶ 269-72, 346. By their own account, however, each alleges that their decompensation was caused by factors that are not traceable to Defendants. SAC ¶¶ 269, 331.
S.D. alleges that after his discharge from prison, he was provided housing and services at a mental health shelter, in addition to support from an ACT team. SAC ¶¶ 238, 256. He alleges, however, that he lacked a sufficient supply of medications, and that while staff at the shelter were assigned to help administer his medications, they inadvertently failed to detect the issue, leading him to miss doses and subsequently decompensate. Id. ¶¶ 249-252. He is currently receiving treatment at Bellevue Hospital. Id. ¶ 270. Plaintiffs allege in conclusory fashion that this staff medication error would not have occurred had S.D. been placed in integrated, community-based mental health housing, id. ¶ 250, but they provide no basis for that conclusion or any other plausible claim that Defendants caused S.D.’s decompensation. Rather, the alleged decompensation appears to be attributable to “the independent action of some third party not before the court.” Lujan, 504 U.S. at 560.
Similarly, D.H. alleges that since his release from prison, he has been provided with housing at the Bridges of New York shelter and with his grandmother. Id. ¶¶ 335, 339. He alleges that he “relaps[ed] into substance use” and “fail[ed] to complete mental health and recovery day programs” that were offered to him. Id. ¶ 331. Since these actions constituted parole violations, he was subsequently incarcerated again, and he is currently receiving inpatient treatment in the Intensive Treatment Unit at Rockland Psychiatric Center. Id. ¶ 346. Because D.H. concedes that he was reinstitutionalized due to his own decision not to participate in the mental health treatment services that were offered to him in the community, he has not plausibly alleged that the Defendants caused his decompensation.
In both cases, because the Discharge Class Plaintiffs allege that actions by third parties or the
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Plaintiffs themselves led to their institutionalization, their alleged injuries are not traceable to Defendants’ conduct. See Woods v. Tompkins Cty., No. 16-CV-0007 (LEK) (TWD), 2019 WL 1409979, at *9-10 (N.D.N.Y. Mar. 28, 2019), aff’d, 804 Fed. App’x 94 (2d Cir. 2020) (dismissing “risk of institutionalization” claim where “[p]laintiff’s own behavior” and “not any discriminatory methods of administration on the part of [d]efendant” led to her alleged increased risk of institutionalization). Thus, they lack standing to bring the proposed Discharge Class claims.
II. THE PROPOSED DISCHARGE CLASS FAILS TO STATE A CLAIM FOR VIOLATION OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT OR SECTION 504 OF THE REHABILITATION ACT.
To establish a claim under Title II of the ADA or the Rehab Act, a plaintiff must show that: (1) he or she is a qualified individual with a disability; (2) the defendant is “subject to one of the Acts”; and (3) the plaintiff was “denied the opportunity to participate in or benefit from the defendant's services, programs, or activities, or was otherwise discriminated against by the defendant because of” her disability. Disabled in Action, 752 F.3d at 196–97 (quoting McElwee, 700 F.3d at 640); Henrietta D., 331 F.3d at 273. A plaintiff must allege, among other things, that the defendant denied meaningful access to services, programs or activities to which they were legally entitled. See McNiece v. Connecticut, 692 Fed. App’x 655, 656 (2d Cir. 2017).
Central to this action are the “integration regulations” of the ADA and Rehab Act. In Olmstead, the Supreme Court concluded that the “integration mandate” of the ADA and Rehab Act requires a public entity to administer its Medicaid program in a manner that does not result in the “unjustified segregation or isolation” of individuals with disabilities. 527 U.S. at 607. Under Olmstead, the State is “required to provide community-based treatment for persons with mental disabilities” when three conditions are satisfied: (1) the State’s “treatment professionals determine that such placement is appropriate”; (2) “affected persons do not oppose such treatment”; and (3) “placement can be reasonably accommodated, taking into account the resources available to the State and the needs of
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others with mental disabilities.” 527 U.S. at 607. Here, the Discharge Class Plaintiffs allege a “risk of institutionalization” theory as well as an
unlawful segregation theory. SAC ¶ 601-02. However, as demonstrated below, Plaintiffs fail to plausibly state an integration mandate claim under either theory. First, they were not “denied” services they were legally entitled to under the ADA or Rehab Act. Second, their release to certain temporary housing situations does not constitute “segregation” from the community.
A. The Discharge Class Plaintiffs Do Not Plausibly Allege That They Were Denied Services to Which they Were Legally Entitled Under the ADA or Rehab Act
The Discharge Class Plaintiffs cannot state a plausible claim that they are at risk for institutionalization merely because they were released to community shelters and are on waitlists for other kinds of housing. In asserting their integration mandate claims, Plaintiffs once again rely on the Second Circuit’s holding in Davis v. Shah, 821 F.3d 231. However, the alleged risk of institutionalization complained of in the SAC does not stem from an affirmative denial of services by Defendants, as what occurred in Davis and its progeny.
In Davis, the Second Circuit found that the State’s amendments to its Medicaid Plan, which limited coverage for orthopedic footwear and compression stockings to those with certain medical conditions—ultimately denying plaintiffs the requested services—put plaintiffs at risk of institutionalization in violation of the ADA and Rehab Act. Id. at 263; accord Ciaramella v. Zucker, 18CV-6945 (JPO), 2019 WL 4805553, at *11 (S.D.N.Y. Sept. 30, 2019) (denial of dental benefit could create risk of institutionalization); E.B., 2020 WL 3893928, at *3 (finding plaintiffs had plausibly stated a risk of institutionalization claim on theory that plaintiffs had been “den[ied] . . . access to OPWDD’s supported, community-based residential placements”).
Here, there is no such affirmative denial of services. Instead, the Discharge Class Plaintiffs do not allege that they have been denied their desired housing situation, but that they have been placed on waitlists. SAC ¶¶ 232, 320, 334. The existence and use of such waitlists is specifically contemplated
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in Olmstead and Plaintiffs placement on such a list does not plausibly allege a violation of the ADA or Rehab Act. 527 U.S. at 606 (recognizing that “it is reasonable for the State to ask someone to wait until a community placement is available”).
The Discharge Class Plaintiffs also complain that the alleged lack of mental health services in the community puts them at serious risk of institutionalization. SAC ¶¶ 117-19. But, once OMH makes a clinical determination that an individual can be released into the community with certain services, whatever risk may result from not receiving adequate mental health care and treatment is not attributable to OMH or to DOCCS, as it is the local government, i.e. the county (or New York City) to which the individual has been released, that is responsible for providing those services. See, e.g., MHL § 41.13 (requiring development of local service programs). Nor can the Discharge Class Plaintiffs plausibly sustain claims against Defendants to the extent that those services are provided by private entities contracted by the local government. Private entities are not covered by Title II of the ADA. See Woods, 804, Fed. App’x at 96 (quoting 28 C.F. R. § 35.130(b)(6) and the DOJ’s ADA Technical Assistance Manual (“A state is not accountable for discrimination in the practices of a licensee if those practices are not the result of requirements or policies established by the state.”); see also Mental Hygiene Legal Serv. on Behalf of Oliviah CC. v. Delaney, 176 A.D.3d 24, 26, (2019), leave to appeal granted sub nom. Mental Hygiene Legal Serv. v. Delaney, 35 N.Y.3d 912, (2020) (the absence of private providers to deliver expanded services to qualified individuals in the community did not establish a violation of the ADA against the State).
The Discharge Class Plaintiffs’ claims that they have been denied services that they are legally entitled to and are thus being served in inappropriately segregated settings appears to be based on a theory that OMH’s preparation of a SPOA application constitutes a clinical determination that certain community-based mental health housing is clinically necessary or appropriate upon an SMI parolees’ release to the community. SAC ¶¶ 445-47. These allegations are conclusory and inaccurate, as
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Commissioner Sullivan’s detailed explanation of the pre-release process makes clear. See supra pp. 7-8. Thus, neither the ADA nor Rehab Act create a legal entitlement to community-based mental
health housing premised solely on the submission of a SPOA application to the county to which the inmate will be released. Nor is there an obligation to provide housing because Plaintiffs are on postrelease supervision. Although DOCCS has an obligation to assist inmates in securing housing, see N.Y. Corr. Law § 201(5), that is the extent of its obligation. See Gonzalez v. Annucci, 32 N.Y.3d 461, 474-76 (2018) (rejecting argument that “substantial assistance” must be provided).
Here, following OMH’s pre-release planning process, the Discharge Class Plaintiffs were released from prison to the counties from which they were convicted and placed on waitlists for other housing. All three are currently on post-release supervision. SAC ¶¶ 216, 234, 278. Two of the Plaintiffs, S.D. and W.P., were released to the 30th Street Men’s Shelter, which is operated by New York City, and then transferred to specialized shelters.19 SAC ¶¶ 234-37, 299, 303, 323. The third Plaintiff, D.H., was initially released to Orange County and, following re-incarceration, he was released to Bridges of New York, a private residential center for men with substance abuse problems located in Newburgh, New York.20 SAC ¶ 234. At one point in time, D.H. had been released to his family. SAC ¶ 340. These release plans were determined to be clinically appropriate at the time of their release and services were to be provided by the counties.
Moreover, allegations that “Plaintiffs in the Discharge Class are routinely released from prisons to the homeless shelter system,” SAC ¶¶ 533, 542, 599, are conclusory and inaccurate, intended no doubt to bolster Plaintiffs’ equally conclusory claims of “warehousing.” SAC ¶ 17. As demonstrated
19 NAICA East Tremont Transitional Housing Program provides intensive supportive case services, housing services, recreation and other services. See https://www.naicany.org/. Delta Manor is operated by the Center for Community Services (“CUCS”), which is the housing SPOA for New York City. See https://www.cucs.org/delta-manor/. 20 See http://www.bridgesofnewyork.org/newburgh.html.
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above, OMH and DOCCS have well-settled statutory and policy requirements with respect to providing appropriate care and treatment of inmates with mental illness upon their release from prison. See Franza v. Stanford, No. 16 Civ. 7625 (KMK), 2018 WL 914782, at *1 n.1 (S.D.N.Y. Feb. 14, 2018); Baker v. N.Y. State Dep’t of Corr. and Comm. Super., No. 17 Civ. 1270 (GTS), 2018 WL 357297, at *3 n.4 (N.D.N.Y. Jan. 10, 2018). Further, the lengthy pre-release planning process that Defendants undertake in evaluating the treatment needs of inmates with mental illness21 belies the Discharge Class Plaintiffs’ claims that putative class members are “routinely” released to the shelter system and left to “fend for themselves.” As such, the Discharge Class Plaintiffs cannot plausibly allege that Defendants have denied them services to which they are legally entitled under the ADA or Rehab Act.
B. The Discharge Class Plaintiffs Do Not Plausibly Allege They Have Been Placed in Unlawfully Segregated Settings
The Discharge Class Plaintiffs further allege that Defendants have violated the ADA and Rehab Act by offering them housing in allegedly “segregated” settings. SAC ¶¶ 602-28. But they have failed to plausibly allege specific facts in support of this conclusory assertion of injury.
In Olmstead, the Supreme Court explained that segregation occurs where an individual suffers “confinement in an institution,” which “severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Olmstead, 527 U.S. at 601. The hallmark of impermissible segregation is that individuals seeking treatment must “relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice.” Id.
“[N]either the Supreme Court nor the Second Circuit has ever decided whether the integration mandate applies outside the context of institutionalization.” E.B., 2020 WL 3893928, at *8. In E.B.,
21 See supra pp. 7-11.
22

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where the plaintiffs alleged that their community placements amounted to impermissible segregation, the court found that although such a claim was “not implausible as a matter of law,” the plaintiffs had done no more than provide “conclusory assertions” that could not survive a motion to dismiss. Id. at *12. While some Circuits have held that a plaintiff may be injured by an allegedly segregated community placement, those cases have largely involved claims of severe restrictions on the plaintiff’s freedom to leave the residence and interact with the community. See Waskul v. Washtenaw Cty. Cmty. Mental Health, 979 F.3d 426, 462 (6th Cir. 2020) (plaintiff “can be outside his home a maximum of forty hours a week”); Steimel v. Wernert, 823 F.3d 902, 918 (7th Cir. 2016) (finding unjustified isolation where state program allowed persons with disabilities to leave their homes only 12 hours each week).
The Discharge Class Plaintiffs do not allege that they have been confined in an institution that requires them to relinquish participation in community life or that severely restricts their ability to leave their residence. Instead, they allege that while they are waiting for a more permanent placement in mental health housing, Defendants have provided interim housing options in the community that include Transitional Living Residences, Transitional Placement Programs, Crisis Residences,22 and State-Operated Community Residences, SAC ¶ 603—none of which “require the residents to relinquish participation in community life they could enjoy given reasonable accommodations.” Olmstead, 527 U.S. at 601.
The Discharge Class Plaintiffs somehow conclude that these settings are “segregated,” id. ¶ 616, but their specific allegations concerning these interim placements do not support that claim. Their specific grievances with these temporary housing placements appear to be that: (1) the residences “exclusively serve individuals with serious mental illness,” id. ¶ 617; (2) they “typically house[] dozens
22 See, e.g., https://omh.ny.gov/omhweb/bho/docs/adult-crisis-residence-benefit-and-billingguidance.pdf (providing rules for Crisis Residences allowing residents to leave and return from the residence as needed, offering flexibility to maintain employment and accomplish other daily tasks to the greatest extent possible).
23

Case 7:19-cv-00639-CS-AEK Document 158 Filed 01/08/21 Page 30 of 31 of individuals,” id. ¶ 618; (3) residents are “subject to house rules, including curfews, for both residents and visitors, and room checks by staff,” id. ¶ 619; (4) there is “limited privacy” because “staff maintain keys to individuals’ bedrooms and lockboxes,” id. ¶ 620; (5) residents must “often share a bedroom,” id. ¶ 621; (6) residents “share a common dining area for meals, and are prohibited from eating outside of designated areas,” id. ¶ 622; and (7) residents “share toilets and showers with multiple residents,” id. ¶ 623. None of these features is in any way equivalent to the type of harmful and impermissible segregation discussed in Olmstead. Indeed, this Court has held that release to a mental health shelter is not per se isolation or segregation. See Jenkins v. New York City Dep’t of Homeless Services, 643 F. Supp. 2d 507, 517-18 (S.D.N.Y. 2009) (deferring to the “reasonable medical judgments of public health officials” as articulated in Olmstead and therefore finding no ADA violation of plaintiff’s placement in a mental health shelter rather than a general shelter), aff’d 391 Fed. App’x 81, 83 (2d Cir. 2010). Because the Discharge Class Plaintiffs cannot plausibly allege that they were released to unlawfully segregated settings, they fail to state a violation of the integration mandate.
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CONCLUSION For all the foregoing reasons, Defendants respectfully request that the Court dismiss the claims of the Discharge Class Plaintiffs in Plaintiffs’ Second Amended Complaint. Dated: New York, New York January 8, 2021
LETITIA JAMES Attorney General State of New York Attorney for Defendants By: ______/s/Jane R. Goldberg_________________
Jane R. Goldberg Jeb Harben Assistant Attorneys General 28 Liberty Street New York, NY 10005 Tel.: (212) 416-6133 (JRG) Tel.: (212) 416-6185 (JH) Jane.Goldberg@ag.ny.gov Jeb.Harben@ag.ny.gov
25

 
 Case 7:19-cv-00639-CS-AEK Document 159 Filed 02/05/21 Page 1 of 32

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------- x

M.G., P.C., C.J., M.J., J.R., D.R., S.D., W.P., and D.H., individually and on behalf of all similarly situated,

Plaintiffs,

-against-

ANDREW CUOMO, in his official capacity as the Governor of the State of New York, the NEW YORK STATE OFFICE OF MENTAL HEALTH, ANN MARIE T. SULLIVAN, in her official capacity as the Commissioner of the New York State Office of Mental Health, the NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, ANTHONY J. ANNUCCI, in his official capacity as the Acting Commissioner of the New York State Department of Corrections and Community Supervision, ANNE MARIE MCGRATH, in her official capacity as Deputy Commissioner of the New York State Department of Corrections and Community Supervision,

7:19-cv-0639 (CS) (AEK)

Defendants. ----------------------------------------------------------------------- x

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ PARTIAL MOTION TO DISMISS THE SECOND AMENDED CLASS ACTION
COMPLAINT

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TABLE OF CONTENTS Page
PRELIMINARY STATEMENT .................................................................................................... 1 STATEMENT OF FACTS ............................................................................................................. 2 LEGAL STANDARDS .................................................................................................................. 4 ARGUMENT .................................................................................................................................. 5 I. The Court Should Disregard the Extraneous Material Defendants Improperly Rely On in
Support of Their Rule 12(b)(6) Motion and Any Arguments Arising Therefrom.............. 5 II. Plaintiffs S.D., D.H., and W.P. Have Standing to Bring Risk of Institutionalization
Claims. ................................................................................................................................ 7 A. Plaintiffs’ allegations satisfy the “injury-in-fact” requirement............................... 7 B. Plaintiffs allege a sufficient causal connection between Defendants’ conduct and
their injuries. ......................................................................................................... 11 III. Plaintiffs Adequately Allege Olmstead Claims under the ADA and § 504...................... 15
A. Defendants misstate the Olmstead legal standards. .............................................. 15 B. Plaintiffs are people with disabilities who are eligible for, do not oppose, but do
not receive community-based mental health housing and services. ..................... 19 C. Defendants place Plaintiffs at serious risk of institutionalization......................... 21 D. Plaintiffs adequately allege that they are held in segregated settings. .................. 24 CONCLUSION............................................................................................................................. 25
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TABLE OF AUTHORITIES

CASES

Page(s)

Ashcroft v. Iqbal, 556 U.S. 662 (2009)...................................................................................................................4

Ball by Burba v. Kasich, 244 F. Supp. 3d 662 (S.D. Ohio 2017) ..............................................................................16, 22

Baur v. Veneman, 352 F.3d 625 (2d Cir. 2003).......................................................................................................9

Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161 (N.D. Cal. 2009) ...................................................................................18

Chase Grp. All. LLC v. City of New York Dep’t of Fin., 620 F.3d 146 (2d Cir. 2010).......................................................................................................4

Chevron Corp. v. Donziger, 833 F.3d 74 (2d Cir. 2016).......................................................................................................11

Ciaramella v. Zucker, No. 18-CV-6945, 2019 WL 4805553 (S.D.N.Y. Sept. 30, 2019)............................................23

Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013)...................................................................................................................8

Clinton L. v. Delia, No. 10-CV-123, 2012 WL 5381488 (M.D.N.C. Oct. 31, 2012)..............................................23

Conn. Office of Prot. & Advoc. for Persons with Disabilities v. Connecticut, 706 F. Supp. 2d 266 (D. Conn. 2010) ........................................................................7, 8, 17, 19

Cortlandt St. Recovery Corp. v. Hellas Telecomm., S.À.R.L., 790 F.3d 411 (2d Cir. 2015).......................................................................................................4

Davis v. Shah, 821 F.3d 231 (2d Cir. 2016)............................................................................................. passim

Day v. D.C., 894 F. Supp. 2d 1 (D.D.C. 2012) .......................................................................................17, 21

Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289 (E.D.N.Y. 2009) ...................................................................17, 20, 21, 24

Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184 (E.D.N.Y. 2009) .....................................................................................21

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E.B. v. Cuomo, No. 16-CV-375, 2020 WL 3893928 (W.D.N.Y. July 11, 2020) ...................................8, 10, 24
Eaves v. Designs for Fin., Inc., 785 F. Supp. 2d 229 (S.D.N.Y. 2011)....................................................................................4, 6
Fisher v. Okla. Health Care Auth., 335 F.3d 1175 (10th Cir. 2003) ...................................................................................13, 15, 22
Gonzalez v. Annucci, 32 N.Y.3d 461 (2018) ..............................................................................................................19
Guggenberger v. Minnesota, 198 F. Supp. 3d 973 (D. Minn. 2016) ..................................................................................8, 12
Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003).....................................................................................................17
Hesse v. Godiva Chocolatier, Inc., 463 F. Supp. 3d 453 (S.D.N.Y. 2020)........................................................................................5
Hunter on of A.H. v. D.C., 64 F. Supp. 3d 158 (D.D.C. 2014) ...........................................................................................17
Jenkins v. New York City Dep’t of Homeless Services, 643 F. Supp. 2d 507 (S.D.N.Y. 2009)......................................................................................25
Joseph S. v. Hogan, 561 F. Supp. 2d 280 (E.D.N.Y. 2008) .........................................................................17, 21, 25
Kreisler v. Second Ave. Diner Corp., 731 F.3d 184 (2d Cir. 2013).....................................................................................................11
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).............................................................................................................7, 11
M.J. v. District of Columbia, 401 F. Supp. 3d 1 (D.D.C. 2019) ...................................................................................9, 10, 14
M.R. v. Dreyfus, 663 F.3d 1100 (9th Cir. 2011) ...................................................................................................8
M.R. v. Dreyfus, 697 F.3d 706 (9th Cir. 2012) ...................................................................................................15
Makarova v. United States, 201 F.3d 110 (2d Cir. 2000).......................................................................................................4
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McClean v. County of Westchester, No. 17-CV-4492, 2018 WL 6329420 (S.D.N.Y. Dec. 3, 2018) ................................................5
Mental Hygiene Legal Service v. Delaney, 176 A.D.3d 24 (N.Y. App. Div. 2019) ....................................................................................19
United States v. Mississippi, 400 F. Supp. 3d 546 (S.D. Miss. 2019)............................................................................ passim
Murphy v. Minn. Dep’t of Human Servs., 260 F. Supp. 3d 1084 (D. Minn. 2017) ..........................................................................7, 21, 24
Olmstead v. L.C., 527 U.S. 581 (1999).....................................................................................................15, 16, 20
Parrales v. Dudek, No. 15-CV-424, 2015 WL 13373978 (N.D. Fla. Dec. 24, 2015) ............................9, 11, 12, 13
Pashby v. Delia, 709 F.3d 307 (4th Cir. 2013) ...................................................................................................15
Rothstein v. UBS AG, 708 F.3d 82 (2d Cir. 2013).................................................................................................11, 13
Schine v. N.Y. State Office for People with Dev. Disabilities, No. 15-CV-5870, 2019 WL 2177004 (E.D.N.Y. May 20, 2019) ............................................23
Sira v. Morton, 380 F.3d 57 (2d Cir. 2004).........................................................................................................6
Steimel v. Wernert, 823 F.3d 902 (7th Cir. 2016) ...................................................................................................24
Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014)...................................................................................................................7
Vailette v. Lindsay, No. 11-CV-3610, 2014 WL 4101513 (E.D.N.Y. Aug. 18, 2014)..............................................4
Villanueva v. Wells Fargo Bank, N.A., No. 13-CV-5429, 2017 WL 11539677 (S.D.N.Y. Jan. 25, 2017) .............................................9
Warth v. Seldin, 422 U.S. 490 (1975)...................................................................................................................8
Waskul v. Washtenaw Cnty. Cmty. Mental Health, 979 F.3d 426 (6th Cir. 2020) ...................................................................................9, 15, 22, 24
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Woods v. Tompkins County, No. 16-CV-7, 2019 WL 1409979 (N.D.N.Y. Mar. 28, 2019) ............................................................................................................................12, 18, 23
Woods v. Tompkins County, 804 F. App’x 94 (2d Cir. 2020)..................................................12, 19
STATUTES 42 U.S.C. § 12101(a)(2), (3) ..........................................................................................................13 Mental Hygiene Law § 7.01...........................................................................................................18 Americans with Disabilities Act ............................................................................................ passim Americans with Disabilities Act Title II ................................................................................ passim MHL § 7.07(c) ...............................................................................................................................18 Rehabilitation Act ..........................................................................................................................17 Rehabilitation Act Section 504 .............................................................................................. passim OTHER AUTHORITIES 28 C.F.R. § 35.130(d) ....................................................................................................................15 28 C.F.R. § 41.51(d) ......................................................................................................................15 45 C.F.R. § 84.4(b)(2)....................................................................................................................15 Federal Rule of Civil Procedure 12(b)(1) ..................................................................................4, 14 Federal Rule of Civil Procedure 12(b)(6) ........................................................................4, 5, 23, 25 Federal Rules of Evidence Rule 201................................................................................................4 U.S. Dep’t of Justice, 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., Questions 6, 9 (June 22, 2011), http://www.ada.gov/olmstead/q&a_olmstead.htm ...................................................................16 U.S. Dep’t of Justice, The Americans with Disabilities Act, Title II Technical Assistance Manual, https://www.ada.gov/taman2.html#II-3.7200..........................................18
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PRELIMINARY STATEMENT Homelessness is a predictable, preventable, and devastating outcome for people with serious mental illness who are leaving incarceration. On paper, New York has a continuum of mental health services for this population. The reality, however, is much uglier. Hundreds of indigent people with serious mental illness leave prison each year only to be trapped in a vicious cycle: prisons-to-shelters, shelters-to-institutions, institutions-to-jails, jails-to-prisons, over and over again. This cycle exists because of Defendants’ systemic failure to create adequate capacity in the existing community-based housing and supportive services programs that many people with disabilities need. Defendants are legally bound under Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“§ 504”) to administer systems that do not result in the unnecessary isolation of people with disabilities, but they have failed to do so. In violation of the Olmstead integration mandate, Defendants segregate Plaintiffs from the community and place them at serious risk of institutionalization. Defendants relegate Plaintiffs to temporary housing that disproportionately serves people with serious mental illness and lacks needed supports. Some temporary housing is even located on the grounds of psychiatric centers and provides nearly identical living conditions. Plaintiffs face unnecessary isolation and—with diagnoses such as schizophrenia and bipolar disorder—predictably deteriorate when placed in inappropriate settings like the shelter system. Defendants, who supervise Plaintiffs and are charged with overseeing and managing the mental health system, fail to make available the communitybased services necessary to prevent the risk of decompensation and institutionalization—in essence, setting Plaintiffs up for failure. Named Plaintiffs S.D., W.P., and D.H., individually and on behalf of the putative Discharge Class, bring the Fifth and Sixth Causes of Action of the Second Amended Complaint (“SAC”), Dkt. 134, against the New York State Office of Mental Health (“OMH”), Commissioner
1

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Ann Marie T. Sullivan, the New York State Department of Corrections and Community Supervision (“DOCCS”), Acting Commissioner Anthony Annucci, and Deputy Commissioner Anne Marie McGrath.1 Plaintiffs allege that Defendants’ failure to make available communitybased mental health housing and supportive services results in two distinct violations of the Olmstead integration mandate: (1) unjustified isolation and segregation and (2) a serious risk of institutionalization. SAC ¶¶ 752-74.
Minimizing the control they exert over Plaintiffs’ lives, Defendants move to dismiss Plaintiffs’ claims arguing that they lack standing and fail to state a cause of action. Defendants’ arguments, however, misrepresent Plaintiffs’ allegations, contort the applicable law, and would, if adopted, strip away core protections for people with disabilities. Contrary to Defendants’ misstatements, Plaintiffs have Article III standing and allege sufficient facts to state claims under the ADA and § 504. Defendants’ motion to dismiss should be denied in its entirety.
STATEMENT OF FACTS Named Plaintiffs S.D., W.P., and D.H. are indigent people with serious mental illness released from prison without the community-based mental health housing and supportive services for which they are eligible. Each was determined by Defendants to be appropriate for an integrated setting, and Defendants applied for community-based mental health housing and services appropriate to each Plaintiff’s needs. Because of woefully inadequate capacity in Defendants’ mental health system, however, the Named Plaintiffs, like hundreds of members of the putative Discharge Class each year, were placed in segregated settings and at serious risk of institutionalization upon their discharge from state prison. Defendants house Plaintiffs in segregated settings, including homeless shelters, mental health shelters, Transitional Living
1 Plaintiffs voluntarily dismissed the claims asserted against Governor Cuomo. Dkt. 148.
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Residences, Crisis Residences, and DOCCS parole housing, while Plaintiffs wait indefinitely for community-based mental health housing and supportive services.
Plaintiffs filed the SAC on August 27, 2020 to address Olmstead violations that harm a class of people with serious mental illness who are released from prison without the services Defendants determined were appropriate for them. E.g., SAC ¶¶ 13, 14, 532-628, 698. The injuries to the new proposed Discharge Class are caused by the same lack of community-based mental health housing and supportive services injuring the putative General Class and RTF Subclass. E.g., id. ¶¶ 24, 415-19, 474-95. The putative Discharge Class, represented by Plaintiffs S.D., W.P., and D.H., are people with serious mental illness who were or will be discharged into inadequate temporary housing situations that place them at risk of institutionalization and subject them to unjustified segregation. Id. ¶¶ 13, 216-353, 698. D.H. and S.D. were institutionalized while waiting for unavailable community-based mental health housing and supportive services, with no end date in sight. Id. ¶¶ 234-77, 301-22. By the time of the filing of the SAC, W.P. was in a homeless shelter a year and three months post-discharge, the majority of that time spent in a facility that serves exclusively men with mental illness. Id. ¶ 301, 303-07, 319. All three Plaintiffs deteriorated in health and remain at risk of further decline due to Defendants’ failure to make available mental health services. Id. ¶¶ 249-70, 273-74, 299, 316-17, 321, 331, 342, 346, 350.
Plaintiffs seek a declaratory judgment that Defendants’ conduct is discriminatory and a permanent injunction requiring Defendants to take the necessary steps to ensure that Plaintiffs are housed in the most integrated setting appropriate to their needs and are not placed at risk of institutionalization. Id. ¶¶ 19, 21, 24. For the reasons stated below, Defendants’ meritless motion to dismiss should be denied and Plaintiffs’ claims should proceed.
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LEGAL STANDARDS Federal Rule of Civil Procedure 12(b)(1) applies to Defendants’ standing argument. See Cortlandt St. Recovery Corp. v. Hellas Telecomm., S.À.R.L., 790 F.3d 411, 416-17 (2d Cir. 2015). Under Rule 12(b)(1), the Court should not dismiss a claim unless it determines that it “lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In determining whether a plaintiff has satisfied his burden to “alleg[e] facts that affirmatively and plausibly suggested that [he] has standing to sue,” the Court must “accept as true all material allegations of the complaint and construe the complaint in favor of the complaining party.” Cortlandt St. Recovery Corp., 790 F.3d at 417 (alterations and citations omitted). When assessing Defendants’ Rule 12(b)(6) arguments, the Court must “constru[e] the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chase Grp. All. LLC v. City of New York Dep’t of Fin., 620 F.3d 146, 150 (2d Cir. 2010). The Court should dismiss the complaint only if it fails to “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). Courts “generally may not consult evidence outside the pleadings” when deciding Rule 12(b)(6) motions. Vailette v. Lindsay, No. 11-CV-3610, 2014 WL 4101513, at *3 (E.D.N.Y. Aug. 18, 2014). Rather, in adjudicating such motions, the Court may only consider (1) “facts alleged in the complaint and documents . . . incorporated in it by reference,” (2) “documents ‘integral’ to the complaint and relied upon in it, even if not attached or incorporated by reference,” (3) “documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint,” and (4) “facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.” Eaves v. Designs for Fin., Inc., 785 F. Supp. 2d 229,
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244 (S.D.N.Y. 2011) (quoting Weiss v. Incorporated Village of Sag Harbor, 762 F. Supp. 2d 560, 567 (E.D.N.Y. 2011)).
ARGUMENT I. The Court Should Disregard the Extraneous Material Defendants Improperly Rely
On in Support of Their Rule 12(b)(6) Motion and Any Arguments Arising Therefrom. All of the documents Defendants cite in their moving papers fall outside the narrow categories of documents the Court may properly consider in deciding a Rule 12(b)(6) motion. Defendants incorrectly assert that the Court may take judicial notice of the facts set forth in myriad publicly available documents and webpages. See Dkt. 156 (“Defs. Mem.”) at 5 n.5, 9 n.18. Although courts may, at times, take judicial notice of documents at the motion-to-dismiss stage, such documents “may be used only for ‘determining what the documents state,’ and may not be used to ‘prove the truth of their contents.’” Hesse v. Godiva Chocolatier, Inc., 463 F. Supp. 3d 453, 463 (S.D.N.Y. 2020) (quoting Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007)). Because Defendants rely on the documents cited for their truth,2 the Court should disregard Defendants’ arguments to the extent they require the Court to accept as true the contents of the cited documents. See, e.g., McClean v. County of Westchester, No. 17-CV-4492, 2018 WL 6329420, at *5 n.6 (S.D.N.Y. Dec. 3, 2018). Defendants also improperly invite the Court to consider written discovery that Defendants have provided in this case—namely, Defendant Sullivan’s February 12, 2020 response to Plaintiffs’ tenth interrogatory, Dkt. 157-3 (“Harben Decl. Ex. C”)—because one paragraph of Plaintiffs’ SAC quotes a portion of Defendant Sullivan’s March 2020 supplemental response to a
2 For example, Defendants cite various information on the DOCCS and OMH websites to provide a purported “Overview of New York’s Public Mental Health System.” Defs. Mem. at 5-7.
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different interrogatory. See Defs. Mem. at 7 n.15; SAC ¶ 605.3 But Plaintiffs’ “mere notice or possession” of a document “is not enough” to enable a Defendant to rely upon it at the motion to dismiss stage. Eaves, 785 F. Supp. 2d at 244 (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)). Because nothing in the document or the SAC indicates that Plaintiffs relied on the February 2020 interrogatory responses in drafting the SAC, and Plaintiffs do not concede the accuracy of the information reflected in the portion of the February 2020 interrogatory responses on which Defendants rely, the Court may not consider the document in deciding Defendants’ motion to dismiss. Id. at 244-46 (document may be considered at motion-to-dismiss stage only if “Plaintiffs relied on [it]” and it is clear that no dispute exists regarding the accuracy of the document). Even if the single sentence in ¶ 605 of the SAC came from the same document upon which Defendants rely, the Court’s consideration of the document also would be improper, as “[l]imited quotation from or reference to documents that may constitute relevant evidence in a case is not enough to incorporate those documents, wholesale, into the complaint.” Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004). Moreover, the Court should not permit Defendants—who have long objected to providing discovery concerning the discharge of individuals to shelters—to rely on material extraneous to the SAC that Defendants have selectively and strategically decided to produce in this action. Compare Harben Decl. Ex. C at 5-7 (demonstrating that discovery on which Defendants now rely was provided in response to Plaintiffs’ request for information concerning how OMH assessed whether people being released from DOCCS custody “were suitable for
3 SAC ¶ 605 states in full as follows: “Defendant Sullivan explained in March 2020 that ‘when OMH is notified by DOCCS that [an] inmate patient is releasing, and OMH has made a clinical determination that the inmate patient requires mental health housing upon release from DOCCS custody, OMH will recommend placing the inmate in a Transitional Living Residence in the event that no other appropriate community-based mental health housing is available as of the time of the inmate’s release date . . . .’”
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release to a homeless shelter”), with, e.g., Dkt. 119 (objecting to Plaintiffs’ request for information
concerning discharge of people with serious mental illness to homeless shelters); Minute Entry,
M.G. v. Cuomo, No. 7:19-cv-0639 (S.D.N.Y. Nov. 12, 2020).
II. Plaintiffs S.D., D.H., and W.P. Have Standing to Bring Risk of Institutionalization Claims. Defendants’ argument that the Court lacks subject matter jurisdiction misapplies standing
doctrine and well-settled Olmstead precedent. To establish Article III standing, Plaintiffs must
demonstrate “(1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the
conduct complained of,’ and (3) a ‘likelihood’ that the injury ‘will be redressed by a favorable
decision.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-58 (2014) (alteration omitted)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). At the pleading stage,
“general factual allegations of injury resulting from the defendant’s conduct may suffice.” Lujan,
504 U.S. at 561. Contrary to Defendants’ arguments, Plaintiffs’ factual allegations support each prong of standing, including the “injury-in-fact” and “causal connection” prongs.4
A. Plaintiffs’ allegations satisfy the “injury-in-fact” requirement. Plaintiffs plead a sufficient “injury-in-fact” to support their integration mandate claims under a risk-of-institutionalization theory.5 To satisfy the injury-in-fact requirement, the injury
4 Defendants do not contest the third Lujan prong. Defs. Mem. 12-18. 5 Defendants do not present any argument to challenge Plaintiffs’ standing to seek relief under an unlawful segregation theory, as they fail to develop their perfunctory claim that Plaintiffs’ injuries arising from their segregation are “speculative.” Defs. Mem. at 13. Regardless, Defendants do not dispute Plaintiffs’ allegations that W.P. was released to homeless shelters, e.g., SAC ¶¶ 301, 30304, that S.D. was released to homeless shelters and later hospitalized, e.g., id. ¶¶ 234, 237-38, 25657, 270, or that D.H. was re-incarcerated and later hospitalized, e.g., id. ¶¶ 331-46. These allegations are sufficient to plead an “injury-in-fact,” see, e.g., Murphy v. Minn. Dep’t of Human Servs., 260 F. Supp. 3d 1084, 1101 (D. Minn. 2017) (risk of segregation sufficiently concrete and particularized to establish standing), and the Court must accept these allegations as true at this stage, Conn. Office of Prot. & Advoc. for Persons with Disabilities v. Connecticut, 706 F. Supp.
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must be “concrete, particularized, and actual or imminent.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013). Ignoring Plaintiffs’ detailed facts about current injuries, Defendants mischaracterize Plaintiffs’ allegations as mere “predictions regarding a possible risk of future” institutionalization, and rely incorrectly on the “certainly impending” standard, Defs. Mem. at 13, which only applies where the injury is “imminent,” but not “actual” or ongoing, see Clapper, 568 U.S. at 409. Because Plaintiffs allege actual, current harm, Defendants’ arguments must be rejected. Conn. Office of Prot. & Advoc. for Persons with Disabilities, 706 F. Supp. 2d at 284.
Risk of institutionalization claims are concerned with current injuries, not future ones. Contrary to Defendants’ position, a risk of institutionalization plaintiff is not required to show imminent institutionalization to satisfy injury-in-fact, or even to prevail on the merits. See Warth v. Seldin, 422 U.S. 490 (1975) (standing turns on “nature . . . of the claim asserted”).6 Rather, a plaintiff must allege only that a defendant’s failure to provide services creates a current, serious risk of institutionalization. See Guggenberger v. Minnesota, 198 F. Supp. 3d 973, 991-92 (D. Minn. 2016) (injury-in-fact satisfied where plaintiff “alleges that he or she is currently lacking necessary supports and services” and “this lack of services is presently causing specific tangible harms”). That is, the inadequate provision of services—which Plaintiffs allege here—is itself an injury sufficient for the “injury-in-fact” prong of Article III standing. See, e.g., E.B. v. Cuomo, No. 16-CV-375, 2020 WL 3893928, at *6 (W.D.N.Y. July 11, 2020) (failure to provide services “now,”
2d 266, 278-79, 284 (D. Conn. 2010) (quoting Bldg. & Constr. Trades Council of Buffalo, N.Y. & Vicinity v. Downtown Dev., Inc., 448 F.3d 138, 144 (2d Cir. 2006)). 6 To hold otherwise would depart from the binding precedent governing the elements needed to prevail on a risk of institutionalization claim. It is well established that no showing of imminent institutionalization is required to succeed on the merits. See Davis v. Shah, 821 F.3d 231, 262-63 (2d Cir. 2016); M.R. v. Dreyfus, 663 F.3d 1100, 1116-17 (9th Cir. 2011), as amended on denial of rehearing en banc, 697 F.3d 706 (9th Cir. 2012); see also infra Section III.
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making institutionalization more likely, satisfies injury-in-fact); see also Waskul v. Washtenaw Cnty. Cmty. Mental Health, 979 F.3d 426, 441-42 (6th Cir. 2020) (allegation of defendant’s ongoing failure to budget appropriately to ensure full implementation of services satisfied injuryin-fact); Parrales v. Dudek, No. 15-CV-424, 2015 WL 13373978, at *4 (N.D. Fla. Dec. 24, 2015) (alleged “arbitrary delays, denials, or insufficient provision of services” satisfied injury-in-fact).
Indeed, the Second Circuit and this Court have recognized in other contexts that conduct that creates a “present, immediate risk of exposure to [harm]” satisfies the injury-in-fact requirement. Cf. Baur v. Veneman, 352 F.3d 625, 635, 640-41 (2d Cir. 2003) (holding in the food safety context that conduct that creates a risk of harm may satisfy injury-in-fact where there is “a tight connection between the type of [alleged] injury” and “the fundamental goals of the statutes which [the plaintiff] sues under”); Villanueva v. Wells Fargo Bank, N.A., No. 13-CV-5429, 2017 WL 11539677, at *5 (S.D.N.Y. Jan. 25, 2017) (finding injury-in-fact in the real property context where alleged conduct “presents a risk of real harm to [a] concrete interest”). That rationale applies with equal force to claims under the ADA and § 504.
Defendants’ argument that Plaintiffs’ allegations are vague ignores the detailed allegations in the SAC. As noted below in Section III, Plaintiffs allege in detail that Defendants fail to make available the community-based mental health housing and supportive services that are necessary for Plaintiffs to remain in integrated settings, and that this failure has placed, and continues to place, Plaintiffs at serious risk of institutionalization. S.D. and D.H. have already been reinstitutionalized and W.P.’s already fragile mental health worsened. E.g., SAC ¶¶ 225-60, 263-64, 273-75, 290-99, 316-17, 320-21, 331-43, 345-48, 350-51. These allegations show actual injuries. See M.J. v. District of Columbia, 401 F. Supp. 3d 1, 9 (D.D.C. 2019) (alleged lack of services leading to hospitalizations sufficient for injury-in-fact); United States v. Mississippi, 400 F. Supp.
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3d 546, 553-55 (S.D. Miss. 2019) (alleged ongoing lack of services after hospital discharge created risk of re-institutionalization sufficient for injury-in-fact). Consequently, Defendants’ argument that Plaintiffs lack an injury-in-fact has no merit.
Defendants’ attempt to analogize E.B. v. Cuomo is also unavailing. In E.B., the plaintiffs challenged the state’s failure to develop adequate supportive housing, which resulted in the provision of supportive housing only to people with disabilities who experienced acute crisis. But, the court found, the plaintiffs were not then at risk. 2020 WL 3893928, at *6 (plaintiffs had not alleged “the state’s failure to immediately provide them with supported, community-based residential placements now ‘will likely’ result in their institutionalization in the future”). Rather, the court determined that the plaintiffs alleged a more attenuated injury that would arise if plaintiffs’ caregivers became unable to provide care, if at that point community-based residential placements were then unavailable, and then only if the plaintiffs’ health and welfare had deteriorated “to such a level that they require institutional care.” Id.
Unlike E.B., Plaintiffs are now experiencing the harm they challenge—that is, a serious risk of institutionalization. Plaintiffs adequately allege that inadequate services already caused them to decline in health and welfare. E.g., SAC ¶¶ 245-64, 273-75, 316-21, 331, 346, 350-51; see M.J., 401 F. Supp. 3d at 9 (pleading that insufficient services led to disrupted education and hospitalizations sufficient for injury-in-fact). Further, they allege that they remain at risk of segregation due to inadequacy of housing and services and Defendants’ policy to discharge people to inappropriate settings. E.g., SAC ¶¶ 584-601. These allegations show current, actionable harm.
Davis also does not support Defendants’ challenge to Plaintiffs’ standing. As an initial matter, the Second Circuit did not resolve a standing issue, and Defendants ignore the different posture of Davis. The portions of Davis quoted by Defendants relate to the prima facie elements
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and evidence submitted at summary judgment. Defs. Mem. at 14; see 821 F.3d at 263-64. Moreover, Defendants offer a contorted view of Davis as precedent that Article III requires parties to have no dispute over whether the denial of services would lead to institutionalization. Defs. Mem. at 14, 16. Neither Davis nor any other precedent stands for this extreme view.
B. Plaintiffs allege a sufficient causal connection between Defendants’ conduct and their injuries.
Plaintiffs sufficiently allege that their serious risk of institutionalization is fairly traceable to Defendants’ conduct and thus satisfy the causation prong of the standing inquiry. To satisfy Article III’s traceability requirement, a plaintiff must plead “a causal connection between the injury and the defendant[’]s conduct.” Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187 (2d Cir. 2013). While the injury must be “fairly traceable” to a defendant’s actions and “not the result of the independent action of some third party not before the court,” Lujan, 504 U.S. at 560 (internal quotation marks and citations omitted), the “fairly traceable” standard is “relatively modest,” requiring something “lower than proximate cause.” Rothstein v. UBS AG, 708 F.3d 82, 92 (2d Cir. 2013) (internal quotation marks and citations omitted); Parrales, 2015 WL 13373978, at *4. Even when a “defendant’s conduct may be only an ‘indirect’ cause [it] is ‘not necessarily fatal to standing.’” Chevron Corp. v. Donziger, 833 F.3d 74, 121 (2d Cir. 2016) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 44 (1976)).
Plaintiffs’ detailed facts are sufficient to show that their injuries are causally connected to Defendants’ actions. Plaintiffs allege that Defendants administer the mental health system and are responsible for developing adequate integrated services, determining funding, and coordinating and planning with local governments regarding community-based care, e.g., SAC ¶¶ 363-65, 36870, 392-414, 442-48; that Defendants are responsible for approving Plaintiffs’ release locations, developing and implementing discharge plans, and securing appropriate services, e.g., SAC
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¶¶ 374, 377-78, 427, 442-57, 575-78, 586-87; and that Defendants fail to adequately administer and develop an integrated system of services, and instead discharge Plaintiffs to inappropriate settings that do not meet their needs while simultaneously exercising authority over where they live. E.g., SAC ¶¶ 234-35, 237, 244-46, 249, 250, 297, 318, 415-19, 457, 473. Plaintiffs therefore plead that their lack of adequate services and the resulting risk of institutionalization are causally connected to Defendants’ conduct. See Guggenberger, 198 F. Supp. 3d at 992 (allegations of defendants’ responsibility to administer waiver program, defendants’ mismanagement of program, and plaintiffs’ need for and lack of waiver program services sufficient to show causal connection); Parrales, 2015 WL 13373978, at *2 (allegations of defendant’s administration, oversight, and failure to provide program guidance sufficient to show causation).7
Defendants’ specious and ableist standing arguments would, if accepted, eviscerate the disability rights statutes. Defendants argue that because Plaintiffs’ long history of disability “predat[es] the events at issue here,” Plaintiffs have a “baseline risk of institutionalization,” and they lack standing because they fail to quantify “how much” risk is due to Defendants’ conduct as compared to their disability. Defs. Mem. at 16. Defendants also blame providers’ staff and Plaintiffs themselves for their injuries. Id. at 17-18.
As an initial matter, Defendants’ “baseline risk” argument cannot be squared with Davis, which recognizes integration mandate claims by people who are appropriate to receive services in integrated settings and yet are vulnerable to institutionalization due to insufficient services. See
7 As discussed further below, Woods v. Tompkins County, No. 16-CV-7, 2019 WL 1409979, at *1 (N.D.N.Y. Mar. 28, 2019), aff’d, 804 F. App’x 94 (2d Cir. 2020), does not support Defendants’ arguments. Woods is a liability decision made on a factual record, does not address Article III causation standards, and is factually distinguishable. Id. at *10; see also Woods v. Tompkins County, 804 F. App’x 94, 96-97, (2d Cir. 2020) (noting lack of allegations of defendant’s role in the unlawful conduct).
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821 F.3d at 263-64. Defendants cannot in good faith argue that people with significant psychiatric and institutional histories fall outside the ADA and § 504, and Defendants cite no case supporting this view. Courts have repeatedly recognized risk of institutionalization claims on behalf of people with disabilities with significant institutional histories. E.g., Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1179 (10th Cir. 2003) (describing prior hospitalizations of plaintiffs); Mississippi, 400 F. Supp. 3d at 567, 569 (summarizing evidence related to earlier hospitalizations). This is precisely the population whose rights are vindicated by the ADA and § 504. See, e.g., 42 U.S.C. § 12101(a)(2), (3). Davis does not support Defendants’ “baseline risk” argument.
Moreover, although Defendants argue that Plaintiffs fail to show causation because they do not explain how much of the risk is attributable to Defendants, Article III does not require Plaintiffs to quantify Defendants’ role in creating their injuries in relation to their serious mental illness. See, e.g., Rothstein, 708 F.3d at 93 (reasoning that absence of specific description of the “scale” of defendants’ alleged conduct did not preclude finding of traceability); Parrales, 2015 WL 13373978, at *4 (finding no requirement to show defendant is sole cause of risk of institutionalization). Article III requires only that Plaintiffs allege a connection, which they have done. Defendants themselves concede that Plaintiffs allege a connection between the risk of institutionalization and Defendants’ conduct. See Defs. Mem. at 16 (“they instead contend that by failing to immediately provide the specific services they demand, Defendants have ‘heightened’ this preexisting risk”).
Defendants also mischaracterize S.D.’s and D.H.’s detailed allegations concerning their injuries. Id. at 17. To the extent Defendants argue that S.D.’s decompensation in the shelter is not fairly traceable to Defendants because of actions or inactions of shelter staff, precedent forecloses that argument. See, e.g., Rothstein, 708 F.3d at 92 (“[A]n intervening cause of the plaintiff’s injury
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. . . is not necessarily a basis for finding that the injury is not ‘fairly traceable’ to the acts of the defendant.”). Further, Plaintiffs allege S.D.’s ongoing risk of institutionalization is directly traceable to Defendants’ failure to provide adequate housing and supportive services, which resulted in S.D. not being admitted to an apartment treatment program and his discharge instead to the shelter system that lacks necessary services. SAC ¶¶ 225-75.
Defendants also incorrectly argue that D.H. has not shown “traceability” sufficient to support his risk claim. Defendants hypothesize that D.H.’s prior institutionalization resulted from his “own decision not to participate in . . . services that were offered.” Defs. Mem. at 17. This argument ignores key allegations.8 Plaintiffs allege that the services Defendants provided to D.H. in the past were inadequate, leading to a cycle of segregation. See SAC ¶¶ 331-35, 339-42. After identifying D.H.’s significant needs and the services he required to remain in the community, Defendants repeatedly discharged him without these services, such as to parole housing that lacks on-site services. Id. ¶ 338. Defendants imply the services were adequate, but this self-serving opinion does not defeat D.H.’s standing. See M.J., 401 F. Supp. 3d at 9 (rejecting defendant’s argument that plaintiff’s alleged refusal of less intensive, “short-term backstop[]” services, which plaintiff alleged were inadequate, precluded injury-in-fact). Further, Defendants do not argue that D.H. is currently declining services; thus, Defendants’ argument is not relevant to traceability for D.H.’s risk of institutionalization. These allegations are sufficient for Rule 12(b)(1) purposes.
In short, Plaintiffs sufficiently allege actual, ongoing injuries—namely, Plaintiffs’ serious risk of institutionalization—that are fairly traceable to Defendants’ failure to provide adequate
8 Defendants’ argument also sounds in discredited “culture of poverty” rhetoric that attributes social harm to individuals’ lapsed responsibility and not system failures. This discourse has long demonized Black, Indigenous, and people of color to obscure government policies that produce racial inequality. See generally Keeanga-Yamahtta Taylor, Race for Profit: How Banks and the Real Estate Industry Undermined Black Homeownership (2019).
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services. For these reasons, Plaintiffs have standing to bring integration mandate claims under a risk-of-institutionalization theory. III. Plaintiffs Adequately Allege Olmstead Claims under the ADA and § 504.
A. Defendants misstate the Olmstead legal standards. Defendants offer a constricted interpretation of Olmstead that disregards decades of controlling law and, if adopted, would strip away core protections for people with disabilities. To establish a Title II or § 504 claim, plaintiffs must show that (1) they are qualified individuals with disabilities, (2) they were excluded from participation in a public entity’s services, programs, or activities or were otherwise discriminated against by a public entity, and (3) such exclusion or discrimination was due to their disability. Davis, 821 F.3d at 259. The ADA and § 504 require states to administer their mental health programs “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” Olmstead v. L.C., 527 U.S. 581, 592 (1999); 28 C.F.R. § 35.130(d); see 28 C.F.R. § 41.51(d); 45 C.F.R. § 84.4(b)(2). Under this “integration mandate,” plaintiffs state an Olmstead claim when they allege that (1) treatment professionals have determined that community-based services are appropriate, (2) the plaintiffs do not oppose such services, and (3) the services can be reasonably accommodated. Davis, 821 F.3d at 262. Public entities also violate the ADA and § 504 when their conduct poses “a serious risk of institutionalization for disabled persons.” Id. at 263. The Second Circuit, like its sister circuits to address the issue,9 has held that Olmstead is violated where plaintiffs demonstrate that a public
9 See, e.g., Waskul, 979 F.3d at 461 (holding plaintiffs pleaded Olmstead claim by alleging that “the current budget methodology caused them to have to substantially rely on family members incapable of providing sustained, long-term care, thus placing them at risk of institutionalization”); Pashby v. Delia, 709 F.3d 307, 321-22 (4th Cir. 2013) (affirming finding of likelihood of success on merits of at-risk claim, citing declarations that lack of in-home care made independent living unsafe and facility admission more likely); M.R. v. Dreyfus, 697 F.3d 706, 720 (9th Cir. 2012) (holding plaintiffs “have shown that reduced access to personal care services will place them at serious risk of institutionalization”); Fisher, 335 F.3d at 1178, 1181-82 (holding Olmstead does
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entity’s failure to provide community-based services “will likely cause a decline in health, safety, or welfare that would lead to the individual’s eventual placement in an institution.” Id. (internal quotation marks and citations omitted); U.S. Dep’t of Justice, 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., Questions 6, 9 (June 22, 2011) (“DOJ Olmstead Statement”), http://www.ada.gov/olmstead/q&a_olmstead.htm (last accessed Feb. 4, 2021).10
No precedent supports Defendants’ argument that plaintiffs bringing an Olmstead claim must demonstrate an “affirmative denial” of services that leads to the risk of institutionalization. Defs. Mem. at 19; see DOJ Olmstead Statement, Question 2 (noting that public entity violates the integration mandate when it “(1) directly or indirectly operates facilities and or/programs [sic] that segregate individuals with disabilities; (2) finances the segregation of individuals with disabilities in private facilities; and/or (3) through its planning, service system design, funding choices, or service implementation practices, promotes or relies upon the segregation of individuals with disabilities in private facilities or programs”). Rather, courts have repeatedly held that the ADA and § 504 provide a cause of action to challenge a state’s failure to administer, operate, and fund services consistent with the integration mandate and in a manner that results in a risk of segregation. See, e.g., Ball by Burba v. Kasich, 244 F. Supp. 3d 662, 681 (S.D. Ohio 2017) (plaintiffs in private nursing facilities stated integration mandate claim based on failures in administration, management, and funding of service system, including lack of program capacity);
not require plaintiffs to be institutionalized to challenge state policy that “imperil[s them] with segregation”); see also Mississippi, 400 F. Supp. 3d at 553 (collecting cases). 10 “Because the [DOJ] is the agency directed by Congress to issue regulations implementing Title II, its views warrant respect.” Olmstead, 527 U.S. at 597-98; see Davis, 821 F.3d at 263-64 (citing and adopting DOJ interpretation as “controlling”).
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Day v. D.C., 894 F. Supp. 2d 1, 22-23 (D.D.C. 2012) (plaintiffs not required to allege that District made a specific decision to place them in segregated settings, and instead that the District provides, administers, and/or funds the existing service system); Conn. Office of Prot. & Advoc., 706 F. Supp. 2d at 276-78 (administration of state’s mental health system, including failures in discharge planning and lack of promptness in providing services); Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289, 319 (E.D.N.Y. 2009), vacated on other grounds sub nom., Disability Advocates, Inc. v. N.Y. Coal. for Quality Assisted Living, Inc., 675 F.3d 149 (2d Cir. 2012) (failures in planning, funding and administration of existing mental health service system); Joseph S. v. Hogan, 561 F. Supp. 2d 280, 293 (E.D.N.Y. 2008) (plaintiffs not required to show the state was specifically responsible for their placement in nursing facilities, but rather to allege systemic failure of mental health system to provide housing in least restrictive environment). In short, an Olmstead violation exists where the “descriptions of the services . . . do not match the reality of service delivery, in terms of what is actually provided and where it is provided.” Mississippi, 400 F. Supp. 3d at 557.
Even more stunning is Defendants’ assertion that they may not be held liable because local actors are responsible for the alleged violations. Defs. Mem. at 20. This argument must be rejected because Plaintiffs state a claim against Defendants based on their statewide failures in administering services, and further because Defendants’ disavowal of responsibility for Olmstead compliance is not supported by law. “New York State is also liable to guarantee that those it delegates to carry out its programs satisfy the terms of its promised performance, including compliance with the Rehabilitation Act.” Henrietta D. v. Bloomberg, 331 F.3d 261, 286 (2d Cir. 2003); see also Hunter on behalf of A.H. v. D.C., 64 F. Supp. 3d 158, 169-70 (D.D.C. 2014) (collecting cases). “Given th[e] public administration” of the state’s mental health system, “Title
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II applies” and “[i]t is immaterial that Plaintiff[s] receive[] the actual services via private
agencies.” See Woods, 2019 WL 1409979, at *10.11 Defendants’ position would create a dangerous
precedent, is contrary to law, and must be rejected. See Brantley v. Maxwell-Jolly, 656 F. Supp.
2d 1161, 1174 (N.D. Cal. 2009) (admonishing state defendants for their “arguably cavalier
approach” of placing full responsibility for identifying and securing alternative services on
individual programs).
Defendants’ effort to shift the blame fails in light of the undisputed role they play in
administering the systems at issue in this case. OMH is responsible for developing, funding, and
administering a system of community-based mental health housing and supportive services. E.g.,
SAC ¶¶ 363-70, 384, 392-419, 439-49, 474-80, 485-88, 758-60, 769-71. Under Mental Hygiene
Law (“MHL”) § 7.01, for example, OMH and its commissioner are required to:
plan and work with local governments, voluntary agencies and all providers and consumers of mental health services in order to develop an effective, integrated, comprehensive system for the delivery of all services to the mentally ill and to create financing procedures and mechanisms to support such a system of services to ensure that mentally ill persons in need of services receive appropriate care, treatment and rehabilitation close to their families and communities. See also MHL § 7.07(c) (requiring OMH to ensure protection of civil rights of service recipients).
OMH is also responsible for mental health services in prison. E.g., SAC ¶¶ 586-93, 602-28.
DOCCS, in turn, maintains legal custody and supervision of people on parole and post-release
supervision until the maximum expiration of their community supervision and must approve all
11 Defendants mischaracterize DOJ’s ADA Technical Assistance Manual. It explains that “a public entity may not establish requirements for the programs or activities of licensees that would result in discrimination against qualified individuals with disabilities,” and “[a]lthough licensing standards are covered by title II, the licensee’s activities themselves are not covered.” U.S. Dep’t of Justice, The Americans with Disabilities Act, Title II Technical Assistance Manual, https://www.ada.gov/taman2.html#II-3.7200 (last accessed Feb. 5, 2021). Under Title II, regardless of whether a state is liable for a shelter’s failures, it is discriminatory for the state to fail to administer systems to prevent unnecessary isolation.
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residences. E.g., SAC ¶¶ 234, 297, 318, 346, 374-78, 420, 439, 449-52, 457, 574-82, 627.12 DOCCS also funds the parole housing system to which certain Plaintiffs are released. SAC ¶¶ 54, 334-35, 549-50, 659. Under Defendants’ flawed and absurd theory, DOCCS and OMH could determine someone needs mental health services, discharge that person to segregated settings or without needed mental health housing and services, and then bear no responsibility for Olmstead compliance because of the role counties play in processing service applications. Federal law offers no such loophole. Defendants’ failure to fund sufficient community-based mental health housing for indigent people with serious mental illness who are leaving incarceration is sufficient ground on which to state claims under the ADA and § 504. Even if the consequences of that failure were exacerbated by the conduct of third parties or Plaintiffs themselves, it does not deprive Plaintiffs of the right to seek a remedy against Defendants. Conn. Office of Prot. & Advoc., 706 F. Supp. 2d at 277.
Woods v. Tompkins County does not save Defendants’ argument. There, the plaintiff’s lack of services was undisputedly caused by her conflicts with private providers, rather than any alleged action by the defendant. Woods, 804 F. App’x at 97. Reliance on Mental Hygiene Legal Service v. Delaney, 176 A.D.3d 24, 26 (N.Y. App. Div. 2019), perm. app. granted, Mental Hygiene Legal Serv. v. Delaney, 35 N.Y.3d 912 (2020), similarly fails because it was dismissed for pleading deficiencies regarding the state’s involvement.
B. Plaintiffs are people with disabilities who are eligible for, do not oppose, but do not receive community-based mental health housing and services.
S.D., W.P., and D.H. allege that they and the putative Discharge Class are people with disabilities who desire and have been determined eligible for community-based mental health
12 Gonzalez v. Annucci, 32 N.Y.3d 461 (2018), relied on by Defendants, is inapplicable, as Plaintiffs do not challenge the steps required of DOCCS to locate housing.
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housing and supportive services upon their release from prison (e.g., SAC ¶¶ 217-32, 265, 271-72, 277, 279-96, 309-11, 322, 324-34, 345, 348, 353, 548, 629-35, 646-49, 698, 754-56, 765-67) and that Plaintiffs can be reasonably accommodated in integrated settings (e.g., id. ¶¶ 393-406, 65360, 757, 768). Due to woefully inadequate capacity, however, Defendants do not make these community-based housing and supportive services available for Plaintiffs. E.g., SAC ¶¶ 233-35, 245-46, 260-64, 297-99, 311, 319-20, 333-34, 340-42, 345, 348, 415-19, 477-95, 542-51, 570, 605, 611, 636-38, 651-52, 698-99. Defendants do not, and cannot, challenge the inadequate availability of these programs upon Plaintiffs’ discharge from prison. Instead, Defendants simply rely on Olmstead’s reference to waitlists and take the Court’s discussion out of context. Defs. Mem. at 19. The Court in Olmstead referred specifically to waitlists “that move[] at a reasonable pace.” 527 U.S. at 605-06. The reasonableness of waitlists is a factual issue relevant to a fundamental alteration defense that cannot be decided in the absence of a record. See Paterson, 598 F. Supp. 2d at 335, 337. Further, the months- and years-long waits that Plaintiffs endure while waiting for critical mental health housing and services are not objectively reasonable. E.g., SAC ¶¶ 416-18; Mississippi, 400 F. Supp. 3d at 554 (“[T]he ADA and Olmstead protect persons trapped in a snail’s-pace deinstitutionalization.”).
In short, Plaintiffs sufficiently allege that they were appropriate for release to the community and have not received the services for which Defendants deemed them eligible.13 Defendants in fact agree that Plaintiffs were appropriate for release to the community. See Defs. Mem. at 20 (describing OMH’s “clinical determination that an individual can be released into the
13 The services at issue are not merely “the specific community mental health services that [Plaintiffs] have requested.” Defs. Mem. at 13; see id. at 14-15. Rather, the services at issue are those that OMH determined were “necessary” and “appropriate.” E.g., SAC ¶¶ 225, 288, 332.
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community with certain services”). And Defendants agree that they identified services appropriate
for Plaintiffs to receive upon release. See id. at 21 (“Plaintiffs were . . . placed on waitlists for other
housing”). Defendants now argue post hoc, however, that the failure to actually provide the
services they determined were appropriate is justified by a medical judgment. Id. But it is
Defendants’ determination that Plaintiffs were appropriate for the services in the first instance that is relevant to the Olmstead claim.14 Defendants’ resource-based decision to place individuals on a
waitlist is an administrative decision, not a medical one, and does not rescind Defendants’ earlier
determination of Plaintiffs’ appropriate services. To the extent Defendants claim that the decision
not to provide adequate housing and supportive services and to use waitlists somehow reflects a
medical judgment, this is a factual dispute not capable of resolution at this stage. Cf. Joseph S.,
561 F. Supp. 2d at 291 (rejecting “defendants’ argument that Olmstead requires that the state’s
mental health professionals be the ones to determine what an individual needs”); see also Day, 894
F. Supp. 2d at 23-24 (collecting cases and observing appropriateness for community-based services is a factual question not dependent on state determinations).
C. Defendants place Plaintiffs at serious risk of institutionalization. Defendants place Plaintiffs and the putative Discharge Class at serious risk of
institutionalization by releasing them without needed supportive services and appropriate
community-based housing. Plaintiffs offer detailed allegations to support this claim:
• Hundreds of members of the putative Discharge Class who are released each year to shelters, hotels, motels, parole housing, and even the community are placed at serious risks
14 Courts have held that a plaintiff may state an Olmstead claim even if a state treatment professional has not made a determination. See Murphy, 260 F. Supp. 3d at 1116 (holding plaintiffs’ failure to allege facts relating to state treatment professional determination not fatal to claim where defendants’ alleged actions prevented evaluations for community-based services); Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 258-59 (E.D.N.Y. 2009), vacated on other grounds, Disability Advocates, Inc. v. N.Y. Coal. for Quality Assisted Living, Inc., 675 F.3d 149 (2d Cir. 2012) (finding that state medical professional determination of appropriateness not necessarily required to state Olmstead claim).
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of institutionalization as they will likely decline in mental health, safety, and welfare due to the absence of mental health housing and supportive services. E.g., SAC ¶¶ 415-19, 495, 532-33, 538-51, 566-79, 584-601, 626-28.
• Defendants are aware of the Plaintiffs’ extensive mental health treatment histories, their high-level support needs, and the serious risk of institutionalization they face without needed services, and Plaintiffs are accordingly among the priority population for mental health housing and supportive services. E.g., id. ¶¶ 217-30, 235, 265, 274, 279-96, 324-29, 332-34, 411, 478-81, 486, 493, 548, 574-79, 584-601, 631-36.
• Defendants determined S.D. eligible for a community-based apartment treatment program, with medication monitoring, and extensive supportive mental health services upon his discharge from prison. Instead, he was placed in a mental health shelter in the Bronx with horrible conditions and without even a Social Security card. Due to the lack of supports and poor conditions in the facility, he did not receive medications (preventable with appropriate services) and deteriorated. He was hospitalized less than three months after his discharge from prison, then institutionalized shortly thereafter. Defendants’ own staff attributed his decompensation to residing in a shelter without needed supports. E.g., id. ¶¶ 216-77.
• W.P. also did not receive the needed community-based housing and services he is eligible for. Instead, he was sent to a mental health shelter in the Bronx, where his mental health continues to deteriorate and conditions exacerbate his symptoms. E.g., id. ¶¶ 278-322.
• D.H. was in a vicious cycle of release and re-incarceration for years, each time being released without the mental health housing and supportive services he needs to succeed. He was released to a shelter with no mental health services at all once, and then again to his grandmother’s house without needed benefits or individualized supportive services that he requires. He was institutionalized in the summer of 2020. E.g., id. ¶¶ 323-53.
Courts have found that individuals are unlawfully placed at risk when deprived of necessary
services. See Davis, 821 F.3d at 263-64 (restrictions on coverage of orthopedic footwear and
compression stockings); Ball by Burba, 244 F. Supp. 3d at 678 (administration failure creating
lack of program capacity); Waskul, 979 F.3d at 461 (state’s budget methodology caused lack of
support services for independent community living); Fisher, 335 F.3d at 1182 (reduction of
prescription benefits). Defendants’ argument that these allegations are “conclusory” is therefore
simply not credible.
While Defendants seemingly blame the indigent Plaintiffs for their suffering in the shelter
system, Defs. Mem. at 18, Plaintiffs allege in detail that the risks they face are attributable to
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Defendants’ conduct. For example, Plaintiffs allege that OMH determined S.D. was eligible and appropriate for community-based mental health housing and supportive services, including case management, ACT, and extensive psychiatric care. SAC ¶¶ 225-26. Rather than be placed into the proper housing and receive these services, S.D. was released to a homeless shelter— notwithstanding OMH’s prior determination that he could not function in a general prison population—and without his Social Security card or activated benefits. Id. ¶¶ 233-36. Plaintiffs allege staff at the homeless shelter did not detect the insufficient medications or provide adequate support to S.D. to assist him with obtaining needed medications, which would have been available in integrated, community-based mental housing, ultimately resulting in S.D. rationing and then missing doses and in his eventual decompensation and re-institutionalization. Id. ¶ 250-64. Plaintiffs also allege in detail the risks that Defendants placed the other Named Plaintiffs in, id. ¶¶ 288-90, 297-305, 309, 316-22 (W.P.); ¶¶ 330-35, 338, 340-48, 350-53 (D.H.), and the Discharge Class members generally, e.g., id. ¶¶ 1-4, 13-18, 24, 383-84, 392-419, 439-58, 474-93, 538-50, 571-628, 654-60, 758-74. Defendants suggest their conduct does not pose a serious risk of institutionalization because they assert that Plaintiffs’ release plans were “clinically appropriate.” Defs. Mem. at 21. But the parties’ positions regarding risk and medical necessity are fact-intensive inquiries that cannot be resolved on a Rule 12(b)(6) motion. Schine v. N.Y. State Office for People with Dev. Disabilities, No. 15-CV-5870, 2019 WL 2177004, at *7 (E.D.N.Y. May 20, 2019); Woods, 2019 WL 1409979, at *9; Clinton L. v. Delia, No. 10-CV-123, 2012 WL 5381488, at *4 (M.D.N.C. Oct. 31, 2012); see also Ciaramella v. Zucker, No. 18-CV-6945, 2019 WL 4805553, at *11 (S.D.N.Y. Sept. 30, 2019) (likelihood of risk is a question of fact). With all facts assumed to be true for Rule 12(b)(6) purposes, Plaintiffs state plausible Olmstead claims for serious risk of institutionalization.
23

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D. Plaintiffs adequately allege that they are held in segregated settings. Defendants’ arguments concerning Plaintiffs’ Olmstead claims under an unlawful
segregation theory likewise fail. Defendants offer a narrow interpretation of “segregation” that
subverts the case law governing ADA and § 504 claims. Defs. Mem. at 23. Courts routinely
describe the “expansive reach of the integration mandate.” See, e.g., E.B., 2020 WL 3893928, at
*8, id. at *10 (holding that the “expansive theory of integration fits comfortably with the ‘familiar
canon of statutory construction that remedial legislation should be construed broadly to effectuate
its purposes’”) (quoting Henrietta D., 331 F.3d at 279). While “[n]either the ADA nor its
regulations specifically define the word ‘setting,’” the “word denotes an environment or situation
rather than any particular physical structure.” Steimel v. Wernert, 823 F.3d 902, 912 (7th Cir.
2016). The Department of Justice has similarly defined “segregation” under Olmstead broadly:
Integrated settings are located in mainstream society; offer access to community activities and opportunities at times, frequencies and with persons of an individual’s choosing; afford individuals choice in their daily life activities; and, provide individuals with disabilities the opportunity to interact with non-disabled persons to the fullest extent possible.
By contrast, segregated settings often have qualities of an institutional nature. Segregated settings include, but are not limited to: (1) congregate settings populated exclusively or primarily with individuals with disabilities; (2) congregate settings characterized by regimentation in daily activities, lack of privacy or autonomy, policies limiting visitors, or limits on individuals’ ability to engage freely in community activities and to manage their own activities of daily living; or (3) settings that provide for daytime activities primarily with other individuals with disabilities.
DOJ Olmstead Statement, Question 1; see Murphy, 260 F. Supp. 3d at 1094, 1117 (denying motion
to dismiss where plaintiffs alleged limited contact with people without disabilities and little control
over roommates, schedules, and socialization); Waskul, 979 F.3d at 462-63 (holding unnecessary
home isolation violates integration mandate); Paterson, 598 F. Supp. 2d at 330-31 (denying
summary judgment to defendants where genuine issues were raised regarding regimentation of
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adult homes); Joseph S., 561 F. Supp. 2d at 291-92 (denying motion to dismiss where residents alleged restricted freedoms and shared residence exclusively with people with mental illness).
Plaintiffs allege in detail their release to segregated settings—including homeless shelters, DOCCS parole housing, and state-operated Transitional Living Residences—the characteristics of which amount to segregation under the governing ADA and § 504 standards:
• settings populated exclusively or disproportionately with individuals with disabilities that often house dozens or even hundreds of individuals and do not enable Plaintiffs to interact with nondisabled people to the fullest extent possible, e.g., SAC ¶¶ 234, 237-38, 244, 25657, 269-70, 300-05, 307, 313, 337, 346, 542-43, 545-46, 552-60, 602-06, 612, 616-18, 62425;
• regimentation in daily activities, including security procedures, curfews, limits on individuals’ ability to manage their activities of daily living, and rules on possessions, meals, movement, and visitors, e.g., id. ¶¶ 61, 243, 247-48, 308, 561, 564-65, 619; and
• lack of privacy or autonomy, including shared rooms and facilities, e.g., id. ¶¶ 61, 242-43, 302, 306, 316, 562-65, 620-25.
Meanwhile, integrated, community-based mental health housing remains out of reach. Defendants’ reliance on Jenkins v. New York City Dep’t of Homeless Services, 643 F. Supp.
2d 507 (S.D.N.Y. 2009), is unavailing. In Jenkins, the court found that the plaintiff insufficiently alleged eligibility for a general shelter. Id. at 516. Here, by contrast, Plaintiffs provide detailed allegations regarding their eligibility for community-based mental health housing and supportive services—allegations that Defendants have not disputed. Even if eligibility were disputed, this would be an issue of fact not resolvable on a Rule 12(b)(6) motion.
CONCLUSION For the reasons above, Defendants’ motion should be denied in its entirety.
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Dated: February 5, 2021 New York, New York

DISABILITY RIGHTS NEW YORK

/s/ Elizabeth Woods___________________

Joshua Rosenthal

Elizabeth Woods

25 Chapel Street, Suite 1005

Brooklyn, New York 11201

Telephone: (518) 432-7861

E-mail:

joshua.rosenthal@drny.org

elizabeth.woods@drny.org

THE LEGAL AID SOCIETY Janet E. Sabel, Attorney-in-Charge

/s/ Elena M. Landriscina________________

Elena M. Landriscina

Stefen R. Short

Robert M. Quackenbush

Veronica Vela

199 Water Street, 6th Floor

New York, New York 10038

Telephone: (212) 577-3530

E-mail:

elandriscina@legal-aid.org

sshort@legal-aid.org

rquackenbush@legal-aid.org

vvela@legal-aid.org

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP

/s/ Walter G. Ricciardi_________________

Walter G. Ricciardi

Emily A. Vance

Crystal Parker

Samuel Margolis

Chantalle Hanna

1285 Avenue of the Americas

New York, New York 10019-6064

Telephone: (212) 373-3000

E-mail:

wricciardi@paulweiss.com

cparker@paulweiss.com

evance@paulweiss.com

channa@paulweiss.com

smargolis@paulweiss.com

Attorneys for Plaintiffs
26

 
 Case 7:19-cv-00639-CS-AEK Document 161 Filed 02/12/21 Page 1 of 18

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

M.G., P.C., C.J, M.J, J.R., D.R., S.D., W.P., and D.H, individually and on behalf of all similarly situated,

19 Civ. 639 (CS) (AEK)

Plaintiffs,

- v -

ANDREW CUOMO, in his official capacity as the Governor of the State of New York, et al.,

Defendants.

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

ANTHONY J. SUN Assistant United States Attorney
Of Counsel

AUDREY STRAUSS United States Attorney Southern District of New York 86 Chambers Street, 3rd Floor New York, New York 10007 Telephone: 212-637-2810 Facsimile: 212-637-2786 Attorney for the United States of America

Case 7:19-cv-00639-CS-AEK Document 161 Filed 02/12/21 Page 2 of 18
TABLE OF CONTENTS PRELIMINARY STATEMENT .................................................................................................... 1 STATUTORY AND REGULATORY BACKGROUND.............................................................. 2 THE DISCHARGE CLASS MEMBERS’ ALLEGATIONS......................................................... 4 DISCUSSION ................................................................................................................................. 7
I. INDIVIDUALS WHO PLAUSIBLY ALLEGE THAT THEY ARE AT SERIOUS RISK OF UNNECESSARY INSTITUTIONALIZATION OR SEGREGATION HAVE STANDING TO BRING A TITLE II CLAIM....................................................... 7
II. ALLEGATIONS THAT A PUBLIC ENTITY ADMINISTERS ITS SERVICES IN A DISCRIMINATORY MANNER STATE A CLAIM UNDER TITLE II OF THE ADA ......................................................................................................................... 11
CONCLUSION............................................................................................................................. 14

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TABLE OF AUTHORITIES
Cases
Conn. Off. of Prot. & Advocacy for Persons with Disabilities v. Connecticut, 706 F. Supp. 2d 266 (D. Conn. 2010)....................................................................................... 13
Cruz v. Dudek, No. 10-cv-23088, 2010 WL 4284955 (S.D. Fla. Oct. 12, 2010) ................................................ 9
Davis v. Shah, 821 F.3d 231 (2d Cir. 2016) .............................................................................................. passim
Disability Advocates, Inc. v. N.Y. Coal. For Quality Assisted Living, Inc., 675 F.3d 149 (2d Cir. 2012) ..................................................................................................... 12
Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289 (E.D.N.Y. 2009) ................................................................................ 12, 13
E.B. ex rel. M.B. v. Cuomo, No. 16 Civ. 735, 2020 WL 3893928 (W.D.N.Y. July 11, 2020).......................................... 9, 10
Fisher v. Okla. Health Care Auth., 335 F.3d 1175 (10th Cir. 2003) ................................................................................................ 10
Georges v. United Nations, 834 F.3d 88 (2d Cir. 2016) ......................................................................................................... 1
Haddad v. Arnold, 784 F. Supp. 2d 1284 (M.D. Fla. 2010)...................................................................................... 9
Long v. Benson, No. 4:08-cv-26, 2008 WL 4571903 (N.D. Fla. Oct. 14, 2008) .................................................. 9
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).................................................................................................................... 7
M.A.C. v. Betit, 284 F. Supp. 2d 1298 (D. Utah 2003)....................................................................................... 12
Martin v. Taft, 222 F. Supp. 2d 940 (S.D. Ohio 2002) ..................................................................................... 13
Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144 (2d Cir. 2013) ..................................................................................................... 12
ii

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Olmstead v. L.C., 527 U.S. 581 (1999)........................................................................................................... passim
Rolland v. Celluci, 52 F. Supp. 2d 231 (D. Mass. 1999) ......................................................................................... 13
Waskul v. Washtenaw Cty. Cmty. Mental Health, 979 F.3d 426 (6th Cir. 2020) ...................................................................................................... 9
Statutes 28 U.S.C. § 517............................................................................................................................... 1 29 U.S.C. § 794............................................................................................................................... 1 42 U.S.C. § 12101....................................................................................................................... 1, 2 42 U.S.C. § 12131........................................................................................................................... 2 42 U.S.C. § 12132....................................................................................................................... 1, 2 42 U.S.C. § 12134........................................................................................................................... 2 Regulations 28 C.F.R. § 35.130 ................................................................................................................. passim 28 C.F.R. Part 35, App. B ............................................................................................................... 2 Other Authorities 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. ............................... passim
iii

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PRELIMINARY STATEMENT The United States of America (the “United States” or the “Government”) respectfully submits this Statement of Interest in accordance with 28 U.S.C. § 5171 to provide its views regarding the applicable pleading requirements for a violation of Title II of the Americans with Disabilities Act (“ADA”),2 42 U.S.C. § 12132, on account of a public entity’s alleged failure to accommodate the needs of indigent individuals with serious mental illness upon their release from prison. Title II and its implementing regulation require 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 United States has a strong interest in ensuring the correct and consistent interpretation and application of Title II and its implementing regulation, in accordance with the Congress’s intent to create “clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities,” and to “reserve a central role” for the Government in enforcing the standards established in the ADA. See 42 U.S.C. § 12101(b)(2), (3). The United States respectfully submits that Plaintiffs in this action have sufficiently pled a violation of Title II with respect to the Discharge Class members, and thus, Defendants’ motion to dismiss should be denied.
1 Congress has authorized the Attorney General to send “any officer of the Department of Justice . . . to any . . . 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.” 28 U.S.C. § 517; see Georges v. United Nations, 834 F.3d 88, 91 & n.10 (2d Cir. 2016). 2 Plaintiffs also raise claims under § 504 of the Rehabilitation Act, 29 U.S.C. § 794, but “[b]ecause the standards imposed by Title II on public entities are generally equivalent to those of § 504,” § 504 is not separately addressed in this Statement of Interest. See Davis v. Shah, 821 F.3d 231, 260 (2d Cir. 2016).

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STATUTORY AND REGULATORY BACKGROUND 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). It found that, “historically, society has tended to isolate and segregate individuals with disabilities,” and that “individuals with disabilities continually encounter various forms of discrimination, including . . . segregation.” 42 U.S.C. §§ 12101(a)(2) and (5). Congress determined that “the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals.” 42 U.S.C. § 12101(a)(7) (emphasis added). Title II of the ADA prohibits disability discrimination in public services: “[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.” 42 U.S.C. § 12132. Pursuant to Congress’s directive, 42 U.S.C. § 12134(a), the Attorney General promulgated a regulation to implement Title II. See 28 C.F.R. Part 35 (Nondiscrimination on the Basis of Disability in State and Local Government Services). Relevant to this action, Title II’s regulation requires public entities (as that term is defined in 42 U.S.C. § 12131(1)) to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities” — the “integration mandate.” 28 C.F.R. § 35.130(d). The “most integrated setting” is “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. Part 35, App. B, at 711 (2020). The regulation requires public entities to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications
2

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would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i).
Under Title II and its implementing regulation, “unjustified institutional isolation of persons with disabilities is,” in and of itself, a prohibited “form of discrimination.” Olmstead v. L.C., 527 U.S. 581, 600 (1999). The Olmstead court reasoned 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. The Court also reasoned 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. The Court concluded that individuals with disabilities are entitled to community-based services “when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with . . . disabilities.” Id. at 607 (plurality opinion).
Since Olmstead, the Department of Justice has issued guidance regarding Title II’s integration mandate. See 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. (“DOJ Olmstead Statement”), https://www.ada.gov/olmstead/q&a_olmstead.htm (last updated Feb. 25, 2020). The Second Circuit has found the Department’s “interpretation of Olmstead both consistent with the integration mandate and well-reasoned,” and it expressly “adopt[ed] it as [its] own.” Davis v. Shah, 821 F.3d 231, 262 (2d Cir. 2016). Thus, it is controlling precedent in the Second Circuit that “a plaintiff may state a valid claim for disability discrimination by demonstrating that the defendant’s
3

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actions pose a serious risk of institutionalization for disabled persons,” rejecting the argument that institutionalization is a prerequisite to enforcement of the integration mandate. Davis, 821 F.3d at 263 (noting that Title II’s protections would be “meaningless” if segregation was required before bringing a challenge). “[I]ndividuals need not wait until the harm of institutionalization or segregation occurs or is imminent” to assert a claim for violation of Title II’s integration requirement. Id. at 262 (quoting DOJ Olmstead Statement at Q & A No. 6). Rather, “a plaintiff could show sufficient risk of institutionalization to make out an Olmstead violation if a public entity’s failure to provide community services . . . will likely cause a decline in health, safety, or welfare that would lead to the individual’s eventual placement in an institution.” Davis, 821 F.3d at 262–63 (quoting DOJ Olmstead Statement at Q & A No. 6).
THE DISCHARGE CLASS MEMBERS’ ALLEGATIONS Plaintiffs allege that the Discharge Class members are “people with serious mental illness whom Defendants unnecessarily segregate or place at serious risk of institutionalization upon their release from prison because Defendants fail to provide the community-based mental health housing and supportive services that Plaintiffs need.” Second Am. Compl. (“SAC”) ¶ 13. Plaintiffs allege that Defendants themselves have “determine[d] that Discharge Class members require and are eligible for community-based mental health housing and supportive services,” but Defendants nevertheless rely on a variety of segregated settings and/or shelter-like parole housing facilities that are “devoid of the essential services that support community living and prevent unnecessary hospitalization and reincarceration,” and Discharge Class members “remain . . . on lengthy waiting lists for community-based mental health housing and supportive services.” SAC ¶¶ 14–16. The capacity of community-based mental health housing and supportive services programs is allegedly
4

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“outstripped by the need and programs are inadequately administered” by Defendants. SAC ¶¶ 392, 415.
Plaintiffs allege that, upon their release, Discharge Class members are subjected to a “vicious cycle of segregation from the community, psychiatric decompensation, and reincarceration because of Defendants’ failure to develop adequate community-based mental health housing and supportive services.” SAC ¶ 532. Specifically, Defendants allegedly “routinely” release members of the Discharge Class from prison to the homeless shelter system “due to inadequate capacity in the community-based mental health housing and supportive service programs for which the Discharge Class members are eligible.” SAC ¶ 533. Moreover, Plaintiffs allege that Defendants establish “criteria for programs that contribute to the homelessness of individuals with serious mental illness, such as allowing entry to some community-based mental health housing only after a year-long stay in a homeless shelter (or on the streets), even while community-based mental health housing for people just released from prison is regularly over capacity.” SAC ¶ 543. Between January 2019 and January 2020, Defendants allegedly released over 300 individuals to the shelter system (plus another 50 to parole housing), but only about 150 to the two most integrated models of community-based mental health housing. SAC ¶¶ 547, 550.
Both the shelter system and parole housing are alleged to be segregated settings whose “residents have fewer opportunities to interact with non-disabled persons than they would in integrated, community-based settings.” SAC ¶ 552, 553–58. Both are alleged to provide housing that “restrict Plaintiffs’ autonomy and choices that govern their daily life activities” in a manner that “deprives [them] of stable living arrangements” and “mental health services” necessary to “ensure successful reintegration into the community” and “maintain psychiatric stability.” SAC ¶¶ 561–69. Plaintiffs allege that Defendants recognize these risks. SAC ¶¶ 574–76.
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Plaintiffs allege that “[w]hen Defendants release Plaintiffs in the Discharge Class to the homeless shelter system, DOCCS parole housing, or even the community without communitybased mental health housing and supportive services, Defendants expose them to serious risks of psychiatric harms and decompensation” because “[t]he successful reintegration of people with serious mental illness, many of whom have required these heightened mental health services while incarcerated, depends on adequate planning for and delivery of necessary services in the community” SAC ¶¶ 584–95. Thus, Plaintiffs allege, “[r]elease without community-based mental health housing and supportive services needlessly exposes individuals with serious mental illness to heightened risks of reincarceration in jails and prisons.” SAC ¶ 596–98.
Some Discharge Class members are allegedly released “from prison directly to segregated and institutional placements affiliated with OMH psychiatric hospitals” — which “are not integrated community-based mental health housing” — “despite these Plaintiffs’ eligibility to be served in more integrated settings.” SAC ¶ 602–06. Plaintiffs allegedly remain in these segregated and institutional placements for months to years, depending on the facility. SAC ¶¶ 613–16. These settings, similar to the shelter system and parole housing, “provide limited opportunities for Plaintiffs to interact with nondisabled individuals as they exclusively serve individuals with serious mental illness.” SAC ¶ 617.
Because of Defendants’ failure to provide mental health services in integrated settings, and their failure to develop adequate community-based mental health housing and supportive services, Plaintiffs allege that members of the Discharge Class are presented with a choice between “(1) release without adequate mental health care and face serious risks of psychiatric decompensation and segregation, or (2) release to a facility that provides mental health treatment
6

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in a segregated setting, despite their eligibility to be served in a community-based housing.” SAC ¶ 628.
DISCUSSION I. INDIVIDUALS WHO PLAUSIBLY ALLEGE THAT THEY ARE AT SERIOUS
RISK OF UNNECESSARY INSTITUTIONALIZATION OR SEGREGATION HAVE STANDING TO BRING A TITLE II CLAIM To make out a Title II “integration mandate” claim at the pleading stage, Plaintiffs need only allege facts that, when accepted as true, plausibly show that a public entity’s actions have placed them at a serious risk of unnecessary institutionalization, even when institutionalization is not imminent. Although Defendants acknowledge that Plaintiffs allege such a serious risk, they incorrectly conclude that Plaintiffs lack standing because institutionalization is not “certainly impending.” Cf. Defs.’ Mem. of Law In Supp. of Partial Mot. to Dismiss Second Am. Compl. (“Defs.’ Br.”), Docket No. 158, at 13. Defendants fundamentally misconstrue the standing inquiry for an at-risk claim: the injury-in-fact is the lack of necessary mental health services resulting in a serious risk of institutionalization. Plaintiffs’ at-risk claim thus satisfies all of the requirements for standing, including an injury-in-fact, because it alleges (1) an actual injury from a present denial of services, (2) caused by the Defendants, (3) that would be redressed if the Defendants’ actions were enjoined. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (to satisfy the “injury in fact” requirement for standing, a plaintiff must identify an injury that is “actual or imminent, not conjectural or hypothetical”). Plaintiffs need not demonstrate that they are about to require institutionalization, as Defendants seem to argue.3 Instead, Plaintiffs need only allege that they are
3 Defendants’ argument that institutionalization is too speculative has no application as to those members of the Discharge Class who, while eligible to receive services in a community-based setting, are released to unnecessarily segregated institutional settings upon discharge, where they remain segregated for months to years. SAC ¶¶ 613–17, 628.
7

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“at serious risk of institutionalization or segregation,” and they “need not wait until the harm of institutionalization or segregation occurs or is imminent.” Davis, 821 F.3d at 262 (quoting DOJ Olmstead Statement at Q & A No. 6). Plaintiffs have alleged a serious risk of unnecessary institutionalization resulting from Defendants’ failure to provide necessary community-based mental health services to the members of the Discharge Class.
Plaintiffs have alleged that members of the Discharge Class are released to a variety of settings, including the homeless shelter system and/or shelter-like parole housing facilities, instead of the community-based mental health housing and supportive services for which Defendants themselves have “determine[d] that Discharge Class members require and are eligible for.” SAC ¶¶ 14–15, 533. Plaintiffs have made detailed allegations as to how and why these settings deprive Discharge Class members of the “stable living arrangements” and “mental health services” necessary to “ensure successful reintegration into the community” and “maintain psychiatric stability.” SAC ¶¶ 552, 553–58, 561–69, 602–17. Thus, Plaintiffs allege, “[r]elease without community-based mental health housing and supportive services needlessly exposes individuals with serious mental illness to heightened risks of reincarceration in jails and prisons.” SAC ¶¶ 596– 98. In other words, it is the Defendants’ alleged placements and lack of mental health services, in and of themselves, that are Plaintiffs’ injuries-in-fact. These allegations are sufficient to plead a serious risk of institutionalization and confer standing.
Defendants misread Davis and contend that a plaintiff must show that the public entity’s action would lead to “actual or imminent” or “certainly impending” institutionalization. Defs.’ Br. at 14. Not so. The injury is the public entity’s alleged failure to provide necessary services that “put[s] [plaintiffs] at a substantial risk of requiring institutional care,” as opposed to the imminent institutionalization that Defendants seem to demand. Davis, 821 F.3d at 264. As the Second Circuit
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noted, Title II’s protections would be “meaningless” if a plaintiff was required to be
institutionalized before bringing a challenge, id. at 263, and Title II does not require that a plaintiff
be on the brink of institutionalization either. See id. at 262 (quoting DOJ Olmstead Statement,
Q&A No. 6 (“Individuals need not wait until the harm of institutionalization or segregation occurs
or is imminent.”)).
Defendants’ reliance on E.B. ex rel. M.B. v. Cuomo is misplaced. No. 16 Civ. 735, 2020
WL 3893928, at *1, *6 (W.D.N.Y. July 11, 2020). In that case, the court reasoned that plaintiffs’
alleged risk was too far removed to establish standing because plaintiffs had caregivers
“provid[ing] housing, care, and services,” and they therefore were not facing a “substantial risk of
institutionalization.” As an initial matter, the court in E.B. applied an incorrect standard for risk of
institutionalization. Compare id., at *3 (finding that “the Residents have not plausibly alleged that
they are at imminent risk of institutionalization”), with Davis, 821 F.3d at 262 (rejecting argument
that a plaintiff must wait until segregation “is imminent” to state an at-risk claim). Moreover,
unlike the court’s characterization of the plaintiffs’ allegations in E.B.,4 in this case there is nothing
4 Numerous courts have held that individuals currently receiving community-based care can successfully allege serious risk of institutionalization under Olmstead where facts are alleged about the unsustainability or insufficiency of that care. See, e.g., Waskul v. Washtenaw Cty. Cmty. Mental Health, 979 F.3d 426, 461 (6th Cir. 2020) (finding that plaintiffs who, because of defendants’ budgeting methodology, had to rely on natural supports “incapable of providing sustained, longterm care” plausibly alleged a serious risk of institutionalization, which “could happen at any moment that Plaintiffs are unable to sustain their own care”); Haddad v. Arnold, 784 F. Supp. 2d 1284, 1291, 1295 (M.D. Fla. 2010) (holding that the plaintiff, who was on a wait list for homeand community-based services, was likely to succeed on the merits of her Olmstead claim because allegations that her volunteer family caregivers were “unable to provide . . . services to Plaintiff indefinitely” described “a real and immediate threat of future injury” “purportedly caused by the Defendants’ actions.”); Cruz v. Dudek, No. 10-cv-23088, 2010 WL 4284955, at *11–12 (S.D. Fla. Oct. 12, 2010) (holding that plaintiff on a wait list for home- and community-based services who relied on the support of friends and family to remain at home showed a likelihood of success on his at-risk Olmstead claim); Long v. Benson, No. 4:08-cv-26, 2008 WL 4571903 (N.D. Fla. Oct. 14, 2008), aff’d, 383 F. App’x 930 (11th Cir. 2010).
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hypothetical about the Discharge Class’s alleged injury and resulting risk: its members are alleged to be subjected to a serious risk of institutionalization because they are released to shelter-like facilities that utterly lack proper housing, care and services for their serious mental illness. Cf. E.B., 2020 WL 3893928, at *6 (plaintiffs at risk only if their caregivers became unable to provide adequate services); see also Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1184–85 (10th Cir. 2003) (public entity placed plaintiffs “at high risk for premature entry” to an institution by leading many of them to remain in their homes “until their health ha[d] deteriorated,” leading them “eventually [to] end up in a nursing home” (internal quotation marks omitted)). This alleged ongoing failure to provide necessary community-based mental health services is itself an injuryin-fact sufficient to establish standing as a serious risk of institutionalization.
Finally, Defendants’ contention that Plaintiffs lack standing because their alleged serious risk of institutionalization is not traceable to Defendants’ actions is spurious at best because it invokes the discriminatory and pernicious stereotypes that the ADA prohibits by blaming the individuals with disabilities for having the very disabilities that put them at risk for institutionalization. See Defs.’ Br. at 16 (“each Plaintiff has a long history of serious mental illness and institutionalization”), 17–18 (“actions by . . . the Plaintiffs themselves led to their institutionalization”). However, as Plaintiffs allege, Defendants administer their services in a manner that denies “the community-based mental health housing and supportive services that Plaintiffs need” to avoid institutionalization. See, e.g., SAC ¶¶ 13, 363–65, 374. Like the plaintiffs in Davis, Plaintiffs have disabilities which can be treated by the services allegedly denied to them and, without those services, are at serious risk of institutionalization. 821 F.3d at 262.
Put simply, allegations that a public entity’s failure to provide necessary community-based mental health services places an individual with disabilities at serious risk of institutionalization or
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segregation is sufficient to state a claim under Title II and the integration mandate, even when institutionalization is not imminent.
II. ALLEGATIONS THAT A PUBLIC ENTITY ADMINISTERS ITS SERVICES IN A DISCRIMINATORY MANNER STATE A CLAIM UNDER TITLE II OF THE ADA The manner in which a public entity administers, operates, and funds services may give
rise to a violation of Title II when services, programs, and activities are not delivered “in the most
integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R.
§ 35.130(d). When a public entity administers its programs in a manner that results in unjustified
segregation of persons with disabilities, the public entity engages in discrimination in violation of
Title II. Id. § 35.130(b)(3) and (d); see Olmstead, 527 U.S. at 600. Thus, “a plaintiff establishes a
sufficient risk of institutionalization to make out an Olmstead violation if a public entity’s failure
to provide community services” is “likely [to] cause a decline in health, safety, or welfare that
would lead to the individual’s eventual placement in an institution.” Davis, 831 F.3d at 262–63
(quoting DOJ Olmstead Statement, at Q & A No. 6).
Defendants nevertheless contend that, by being placed on waitlists, Plaintiffs were not
affirmatively denied services to which they were legally entitled, and thus cannot state a claim for
relief. However, a waitlist is little more than an ongoing constructive denial of services, and consequently, Defendants’ contention that they have not denied services is inaccurate.5 See, e.g.,
5 Moreover, Defendants’ assertion that there can be no violation of Title II because waitlists were contemplated in Olmstead is simply wrong. Not only was the discussion in Olmstead about “a waiting list that moved at a reasonable pace” — which Plaintiffs specifically allege is not the case here, SAC ¶ 417 — but importantly, it was in the context of a “cost-based” fundamental-alteration defense. Olmstead, 527 U.S. at 604–05. Defendants bear an affirmative burden to establish such a defense. DOJ Olmstead Statement, at Q&A 10; see also 28 C.F.R. § 35.130(b)(7)(i) (public entity must “demonstrate” the modifications would fundamentally alter the nature of the service, program, or entity). As such, the adequacy of this defense is not capable of resolution on the basis of the pleadings alone. See Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 153 (2d Cir.
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M.A.C. v. Betit, 284 F. Supp. 2d 1298, 1309 (D. Utah 2003) (denying motion to dismiss and holding that “placement of Plaintiffs on the [home- and community-based services] waiver waiting list threatens Plaintiffs with institutionalization because it forces Plaintiffs to choose between staying in the community without any services or entering an institution in order to receive services.”). Defendants themselves concede that Plaintiffs are on waitlists instead of being provided the community-based services they seek and are eligible for. Defs.’ Br. at 19–20. The ADA does not require that Defendants affirmatively deny the community-based mental health housing and supportive services; it is sufficient for Plaintiffs to allege that Defendants’ failure to administer its mental health system in a manner that comports with the “integration mandate.”
Defendants next contend that because local governments are responsible for providing services once an individual is released into the community, and private licensees actually provide those services, Plaintiffs fail to state a Title II claim. Defs.’ Br. at 20. But Title II prohibits discriminatory “methods of administration,” 28 C.F.R. § 35.130(b)(3), which include the “statutory and regulatory framework governing the administration, funding, and oversight of [a State’s mental health services].” Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289, 317– 18 (E.D.N.Y. 2009), vacated on other grounds sub nom., Disability Advocates, Inc. v. N.Y. Coal. For Quality Assisted Living, Inc., 675 F.3d 149 (2d Cir. 2012). Plaintiffs allege that Defendants “inadequately administer” and “poorly implement” their mental health service system such that the Discharge Class members cannot access necessary community-based services that they are
2013) (“It is a factual issue whether a plaintiff’s proposed modifications amount to ‘reasonable modifications’ which should be implemented, or ‘fundamental alterations,’ which the state may reject.” (alterations & citations omitted)); Disability Advocates, 598 F. Supp. 2d at 335 (whether relief constitutes a “fundamental alteration” is a “complex, fact-intensive” inquiry that is “particularly inappropriate” for summary judgment); cf. Olmstead, 527 U.S. at 587, 594 (case was at the summary judgment stage, and Court remanded for further consideration of the state’s fundamental alteration defense).
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eligible for.6 SAC ¶¶ 415–19. The fact that local or private entities have a role in the system that the State administers does not absolve its affirmative responsibility to comply with Title II. See Olmstead, 527 U.S. at 607 (holding that Title II’s integration mandate applies to states’ provision of services and not on particular privately owned facilities); Disability Advocates, Inc., 598 F. Supp. 2d at 318 (“The State cannot evade its obligation to comply with the ADA by using private entities to deliver some of [the services in its system]”); see also Conn. Off. of Prot. & Advocacy for Persons with Disabilities v. Connecticut, 706 F. Supp. 2d 266, 276–77 (D. Conn. 2010) (denying motion to dismiss where defendant state financed services in private nursing homes); Martin v. Taft, 222 F. Supp. 2d 940, 981 (S.D. Ohio 2002) (holding that liability “does not hinge upon whether the setting in question is owned or run directly by the State.”); Rolland v. Celluci, 52 F. Supp. 2d 231, 237 (D. Mass. 1999) (finding it immaterial to a motion to dismiss that plaintiffs resided in private nursing facilities).
Where, as here, Plaintiffs allege that a public entity administers its service system in a manner that fails to provide adequate community-based mental health housing and supportive services and exposes them to a serious risk of institutionalization, see, e.g., SAC ¶¶ 415–19, that is sufficient to state a claim under Title II and the integration mandate.
6 Indeed, Defendants have themselves outlined their many administration, funding, and oversight roles in the State’s mental health system. See, e.g., Defs.’ Br. at 5–9 (“OMH oversees New York’s public mental health system which includes all mental health programs licensed, regulated, operated, funded or approved by OMH. . . . OMH funds or operates 40,000 units of housing. . . . DOCCS [coordinates] services in the community for those being released to the community”). Thus, Defendants decide what services to fund, what settings to license, how to allocate resources among services, and how much capacity to provide.
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CONCLUSION

For the foregoing reasons, the Court should hold that allegations that a public entity created

a serious risk of institutionalization are sufficient to state a Title II violation of the integration

mandate. The Court should thus deny Defendants’ motion to dismiss the claims of the Discharge

Class Plaintiffs in the Second Amended Complaint.

Dated: February 12, 2021 New York, New York

Respectfully submitted,

AUDREY STRAUSS United States Attorney Southern District of New York Attorney for the United States of America

By: s/ Anthony J. Sun ANTHONY J. SUN Assistant United States Attorney 86 Chambers Street, 3rd Floor New York, New York 10007 Tel.: 212-637-2810 anthony.sun@usdoj.gov

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