The Clerk of the Court is directed to amend the official * caption as set forth above. The Honorable Lawrence E. Kahn, United States District Judge ** for the Northern District of New York, sitting by designation. 08-4113-cv Bolmer v. Oliveira 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3

-------- 4 August Term, 2009 5 (Argued: November 13, 2009 Decided: February 8, 2010) 6 Docket No. 08-4113-cv 7 -----------------------------------------------------------X 8 BRETT BOLMER, 9 Plaintiff-Appellee, 10 - v. - 11 JOSEPH OLIVEIRA, M.D., CONNECTICUT DEPARTMENT OF MENTAL HEALTH 12 AND ADDICTION SERVICES, 13 Defendants-Appellants, 14 MALENA SANGUT, DIANE DEKEYSER, M.D., VICTORIA ESTABA, M.D., DONNA 15 PELLERIN, M.D., DANBURY HOSPITAL, 16 Defendants. * 17 -----------------------------------------------------------X 18 Before: McLAUGHLIN and WESLEY, Circuit Judges, and KAHN, 19 District Judge. ** 20 Appeal from an order of the United States District Court for 21 the District of Connecticut (Arterton, J.) entered August 6, 22 2008. The court denied summary judgment to Defendants who had2 1 asserted qualified immunity and Eleventh Amendment immunity 2 defenses. On interlocutory appeal, Defendants-Appellants raise 3 several arguments we have no jurisdiction to review, and we 4 DISMISS the appeal as to these arguments. As to their reviewable 5 challenges, we cannot conclude as a matter of law that 6 Defendants-Appellants are entitled to qualified immunity or 7 Eleventh Amendment immunity. We therefore AFFIRM the denial of 8 summary judgment on these defenses. 9 EMILY V. MELENDEZ, Assistant 10 Attorney General, for Richard 11 Blumenthal, Attorney General of the 12 State of Connecticut, Office of the 13 Attorney General, Hartford, CT, for 14 Defendants-Appellants. 15 16 WILLIAM BROOKS, Touro Law Center, 17 Central Islip, NY, for Plaintiff18 Appellee. 19 20 NANCY B. ALISBERG, Office of 21 Protection & Advocacy for Persons 22 with Disabilities, Hartford, CT, 23 for Plaintiff-Appellee. 24 25 SUSAN J. KOHLMANN, Jenner & Block 26 LLP (Danielle F. Tarantolo, on the 27 brief), New York, NY, for Amici 28 Curiae National Disability Rights 29 Network, New York Lawyers for the 30 Public Interest, and Vermont 31 Protection & Advocacy, Inc., in 32 support of Plaintiff-Appellee. 333 1 McLAUGHLIN, Circuit Judge: 2 This case arises from the involuntary commitment of Brett 3 Bolmer. He sued various individuals and entities involved in his 4 commitment in the United States District Court for the District 5 of Connecticut (Arterton, J.). As relevant to this appeal, 6 Bolmer claimed that Dr. Joseph Oliveira violated his Fourth 7 Amendment and substantive due process rights enforceable under 42 8 U.S.C. § 1983, and falsely imprisoned him in violation of 9 Connecticut law, when he ordered Bolmer committed. Bolmer also 10 alleged that the Connecticut Department of Mental Health and 11 Addiction Services (“DMHAS”) violated Title II of the Americans 12 with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131 et seq., by 13 “stereotyping Mr. Bolmer as an unreliable individual who 14 manifested delusions because of his diagnosed mental illness.” 15 Oliveira and DMHAS moved for summary judgment on the grounds 16 that (1) Oliveira, as a state officer, has qualified immunity to 17 Bolmer’s § 1983 claims and has sovereign immunity to the false 18 imprisonment claim; and (2) DMHAS is immune to the Title II claim 19 under the Eleventh Amendment. The district court granted summary 20 judgment on Oliveira’s defense of sovereign immunity to Bolmer’s 21 false imprisonment claim, but denied summary judgment on the 22 qualified immunity and Eleventh Amendment immunity defenses.4 1 On interlocutory appeal, Defendants-Appellants raise several 2 arguments we have no jurisdiction to review under the collateral 3 order doctrine, and we dismiss the appeal as to these arguments. 4 However, their central thrust raises reviewable challenges to the 5 legal standards the district court employed in denying them 6 summary judgment on their qualified immunity and Eleventh 7 Amendment immunity defenses. 8 First, Oliveira argues that the medical-standards test set 9 forth in Rodriguez v. City of New York, 72 F.3d 1051 (2d Cir. 10 1995) for determining whether an involuntary commitment violates 11 substantive due process is inconsistent with County of Sacramento 12 v. Lewis, 523 U.S. 833 (1998). He contends that it imposes 13 liability for conduct that does not “shock the conscience.” We 14 disagree, and hold that Rodriguez is consistent with Lewis. 15 Second, DMHAS believes that, under Garcia v. S.U.N.Y. Health 16 Sciences Center of Brooklyn, 280 F.3d 98 (2d Cir. 2001), the 17 district court should have required a showing that it acted with 18 discriminatory animus or ill will before denying it summary 19 judgment on its Eleventh Amendment immunity defense to Bolmer’s 20 Title II claim. Absent such a showing, DMHAS argues, Congress’s 21 abrogation of DMHAS’s immunity is invalid. Because Garcia was 22 based on Congress’s enforcement of the Equal Protection Clause, 23 we hold that it is not applicable when Congress’s abrogation is5 1 supported by its enforcement of the substantive due process right 2 not to be involuntarily committed absent a danger to self or 3 others. 4 Because we cannot conclude as a matter of law that 5 Defendants-Appellants are entitled to qualified immunity or 6 Eleventh Amendment immunity, we affirm the denial of summary 7 judgment on these defenses. 8 BACKGROUND 9 Plaintiff-Appellee Brett Bolmer has a history of mental 10 illness. In 2003, the Greater Danbury Mental Health Authority 11 (“GDMHA”) began providing housing to Bolmer through its 12 Transitional Housing Program (the “Program”). GDMHA is a local 13 agency of DMHAS that provides out-patient services to patients in 14 its care. As part of the Program, Bolmer was assigned a case 15 manager, Lisa Kaminski. Bolmer and Kaminski had known one 16 another before, having grown up in the same town. Upon 17 Kaminski’s appointment, the two began communicating frequently 18 through text messages and phone calls. 19 According to Bolmer, he began a sexual relationship with 20 Kaminski in February 2004. He claims that they would meet once 21 or twice per week at Kaminski’s apartment.6 1 On September 13, 2004, Bolmer placed roses on Kaminski’s 2 car. He asserts that when he saw Kaminiski later that day, she 3 told him that their relationship was over. 4 The next day, Bolmer told the director of the Program, Rick 5 Hammond, that he had been involved in a sexual relationship with 6 Kaminski. He also told a GDMHA caseworker, Mike Anello. Around 7 the same time, Kaminski notified Hammond that Bolmer had left 8 flowers on her car and had called her twice. GDMHA staff 9 questioned whether Bolmer was manifesting “erotomania,” a 10 psychiatric syndrome characterized by a false belief that there 11 exists a romantic relationship with another person. No one 12 believed in the alleged sexual relationship with Kaminski. A 13 GDMHA caseworker, Joe Halpin, informed Bolmer’s probation officer 14 of the situation. The officer called Bolmer and told him to 15 return to the GDMHA facility. Bolmer complied. 16 The facts surrounding Bolmer’s return to GDMHA are 17 controversial. According to Bolmer, he was annoyed when he had 18 to return, so he was speaking loudly to the staff, but was not 19 yelling. Dr. Joseph Oliveira, a GDMHA psychiatrist whom Bolmer 20 had never met, entered the room and, without introducing himself, 21 told Bolmer that he was there to conduct a “mini mental health 22 exam.” Oliveira asked Bolmer to repeat three words: “motor, 23 tree, giraffe,” but “barely” asked him any questions. At this7 1 point Bolmer realized that Oliveira was considering whether to 2 have him committed. Bolmer tried to explain his feelings about 3 his breakup with Kaminski to those in the room – Oliveira, 4 Halpin, and Anello – but they “kept looking at [him] as if [he] 5 was crazy to be thinking that a case worker could possibly have 6 an affair with a crazy person.” Oliveira “rolled his eyes” at 7 Bolmer. 8 Frustrated that no one believed him, Bolmer began talking 9 about other injustices he had suffered. After someone told him 10 to calm down, Bolmer attempted to convey that he was not angry. 11 He stated that “if [he] was really angry that [he] would pick up 12 the chair in the room and throw it.” Oliveira then opened the 13 door and police and ambulance workers “came rushing in.” Bolmer 14 claims that the examination lasted “no more than five minutes.” 15 According to DMHAS and Oliveira, when Bolmer returned to the 16 GDMHA facility he was yelling loudly enough for Oliveira to hear 17 him in the next room. Out of concern for everyone’s safety, 18 Oliveira had a staff member call the police. During the 19 evaluation, Bolmer exhibited increasing anger and hostility, 20 stating that if he were angry, he “would pick up the fan in the 21 room and throw it and go over and kick Joe Halpin in the head.” 22 At this point, Oliveira determined that the examination could not8 1 continue safely. According to Oliveira and GDMHA staff, the 2 examination lasted at least 15 minutes. 3 The parties do not dispute that, at the conclusion of the 4 examination, Oliveira executed a Physician’s Emergency 5 Certificate ordering Bolmer involuntarily committed “for no more 6 than 15 days care and treatment in a mental hospital.” Oliveira 7 noted on the Certificate that Bolmer was having erotomanic 8 delusions about Kaminski, and appeared angry and hostile. He 9 concluded, “Patient at this time, in my clinical opinion, is 10 dangerous and poses a threat to others.” 11 The ambulance workers transported Bolmer to Danbury 12 Hospital, a private institution providing in-patient psychiatric 13 care to GDMHA clients under a contract with the state. At the 14 hospital, staff strapped Bolmer to his bed and injected him with 15 Geodon, an anti-psychotic medication. After a staff member 16 discovered that Bolmer’s cell phone contained numerous text 17 messages between him and Kaminski, the hospital discharged Bolmer 18 two days later. 19 Phone records later revealed that Bolmer and Kaminski had a 20 history of communicating frequently, and that the communications 21 were initiated by both parties. Kaminski conceded that she used 22 poor judgment in her extensive communications with Bolmer, but 23 denied any sexual relationship.9 1 In October 2004, DMHAS fired Kaminski for violating DMHAS 2 Work Rule Number 18: “The development of sexual or otherwise 3 exploitive relationships between employees and clients is 4 prohibited.” 5 In February 2006, Bolmer sued Oliveira, DMHAS, and certain 6 others involved in his involuntary commitment. Bolmer claimed 7 (1) under 42 U.S.C. § 1983, that Oliveira violated the Fourth and 8 Fourteenth Amendments by ordering him committed; (2) that 9 Oliveira falsely imprisoned him in violation of Connecticut law; 10 and (3) that DMHAS violated Title II of the ADA by “stereotyping 11 Mr. Bolmer as an unreliable individual who manifested delusions 12 because of his diagnosed mental illness.” 13 In January 2008, Oliveira and DMHAS (together, the “State 14 Defendants”) moved for summary judgment. The State Defendants 15 and Bolmer both submitted expert affidavits on the issue of 16 whether Oliveira’s examination was consistent with generally 17 accepted medical standards. Not surprisingly, the State 18 Defendants’ expert believed that the examination was consistent, 19 and Bolmer’s expert did not. 20 In his response to the State Defendants’ motion, Bolmer 21 indicated that he did not intend to pursue his § 1983 Fourth 22 Amendment claim against Oliveira.10 1 In August 2008, the district court granted summary judgment 2 to Oliveira on Bolmer’s false imprisonment claim, but denied it 3 on the § 1983 and Title II claims. First, the court found that 4 Oliveira, as a state officer, was shielded from Bolmer’s false 5 imprisonment claim by sovereign immunity. The court stated: 6 Although Mr. Bolmer’s allegations, if true, could support 7 a finding of negligence on the part of Dr. Oliveira, he 8 points to no acts or statements which demonstrate malice 9 or wantonness. . . . The evidence which Mr. Bolmer has 10 marshaled in support of his claims may point to 11 indifference, but there is no evidence of extreme conduct 1 2 whi chcoulds at i s fytheintent ional ityrequi redbythe 13 Connecticut Supreme Court to eliminate Dr. Oliveira’s 14 immunity against suit on the state law claims in this 15 Court. 16 Bolmer v. Oliveira, 570 F. Supp. 2d 301, 317 (D. Conn. 2008). 17 Second, the district court denied summary judgment on 18 Oliveira’s qualified immunity defense to the § 1983 Fourteenth 19 Amendment claim. Bolmer’s claim was that Oliveira violated his 20 right to substantive due process by ordering him committed based 21 on a deficient examination. The district court applied Rodriguez 22 v. City of New York, 72 F.3d 1051 (2d Cir. 1995), which held that 23 an involuntary commitment violates substantive due process if the 24 decision to commit is based on “substantive and procedural 25 criteria that are . . . substantially below the standards 26 generally accepted in the medical community.” Id. at 1063. 27 Here, the parties’ experts based their opinions on differing11 1 versions of the facts, and disagreed on the applicable medical 2 standards. Thus, the question whether Oliveira’s decision fell 3 substantially below those standards remained for trial. 4 Third, the district court found that material issues of fact 5 also precluded summary judgment on DMHAS’s defense of Eleventh 6 Amendment immunity to the Title II claim. As the court saw it, 7 the issue turned on whether Congress’s abrogation of DMHAS’s 8 immunity to Bolmer’s Title II claim was appropriate. Under 9 United States v. Georgia, 546 U.S. 151 (2006), the abrogation was 10 valid if DMHAS violated both Title II and the Fourteenth 11 Amendment. Because there were material issues of fact as to 12 whether such violations occurred, the validity of Congress’s 13 abrogation could not be resolved on summary judgment. 14 Last, the district court denied summary judgment to Oliveira 15 on Bolmer’s Fourth Amendment claim without discussing the claim. 16 The State Defendants appeal the denial of summary judgment, 17 resting on the collateral order doctrine as the basis for our 18 jurisdiction. Specifically, Oliveira contends that he has 19 qualified immunity to the § 1983 substantive due process claim 20 for four reasons: (1) Bolmer’s expert offered insufficient 21 evidence of the applicable medical standards to create a genuine 22 issue of fact as to what those standards are; (2) Oliveira’s 23 conduct did not rise to the level of a substantive due process12 1 violation because it did not “shock the conscience” under County 2 of Sacramento v. Lewis, 523 U.S. 833 (1998); (3) Danbury Hospital 3 staff, and not Oliveira, were responsible for Bolmer’s 4 commitment; and (4) an involuntary commitment will not violate 5 substantive due process when a more specific constitutional 6 provision - here, the Fourth Amendment – applies. 7 Oliveira also argues that the district court should have 8 granted him summary judgment on Bolmer’s § 1983 Fourth Amendment 9 claim because the claim was abandoned. 10 DMHAS contends that the Eleventh Amendment bars litigation 11 of Bolmer’s Title II claim because he failed to show that DMHAS 12 acted with discriminatory animus or ill will under Garcia v. 13 S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98 (2d Cir. 14 2001), and therefore Congress’s abrogation of DMHAS’s Eleventh 15 Amendment immunity is invalid. 16 DISCUSSION 17 I. Appellate Jurisdiction and Standard of Review 18 Though neither party contests our appellate jurisdiction, we 19 are obligated to consider the issue sua sponte. Joseph v. 20 Leavitt, 465 F.3d 87, 89 (2d Cir. 2006). 21 Orders denying summary judgment are generally not 22 immediately appealable “final decisions” under 28 U.S.C. § 1291. 23 See Finigan v. Marshall, 574 F.3d 57, 60 n.2 (2d Cir. 2009).13 1 Pursuant to the collateral order doctrine, however, we have 2 jurisdiction over interlocutory appeals of orders denying claims 3 of qualified immunity and Eleventh Amendment immunity. Mitchell 4 v. Forsyth, 472 U.S. 511, 530 (1985) (qualified immunity); Puerto 5 Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 6 139, 141 (1993) (Eleventh Amendment immunity). The principal 7 justification for allowing such appeals is that “‘[t]he 8 entitlement is an immunity from suit rather than a mere defense 9 to liability; and like an absolute immunity, it is effectively 10 lost if a case is erroneously permitted to go to trial.’” Puerto 11 Rico Aqueduct & Sewer Auth., 506 U.S. at 144 (quoting Mitchell, 12 472 U.S. at 526). 13 However, to avoid running afoul of the collateral order 14 doctrine’s requirement that a reviewable order “involve a 15 ‘clai[m] of right separable from, and collateral to, rights 16 asserted in the action,’” we may review immunity denials only to 17 the narrow extent they turn on questions of law. Mitchell, 472 18 U.S. at 527-30 (quoting Cohen v. Beneficial Indus. Loan Corp., 19 337 U.S. 541, 546 (1949)); see Komlosi v. N.Y. State Office of 20 Mental Retardation and Developmental Disabilities, 64 F.3d 810, 21 814-15 (2d Cir. 1995). In short, where the district court denied 22 immunity on summary judgment because genuine issues of material 23 fact remained, we have jurisdiction to determine whether the14 1 issue is material, but not whether it is genuine. Jones v. 2 Parmley, 465 F.3d 46, 55 (2d Cir. 2006). Stated differently, we 3 may determine whether a defendant is entitled to immunity “on 4 stipulated facts, or on the facts that the plaintiff alleges are 5 true, or on the facts favorable to the plaintiff that the trial 6 judge concluded the jury might find.” Salim v. Proulx, 93 F.3d 7 86, 90 (2d Cir. 1996). But we may not review the district 8 court’s ruling that “the plaintiff’s evidence was sufficient to 9 create a jury issue on the facts relevant to the defendant’s 10 immunity defense.” Id. at 91. Cabined by these constraints, our 11 review is de novo. Jones, 465 F.3d at 55. 12 Where we have jurisdiction over an interlocutory appeal of 13 one ruling, we have the discretion to exercise pendent appellate 14 jurisdiction over other district court rulings that are 15 “‘inextricably intertwined’” or “‘necessary to ensure meaningful 16 review’” of the first. Ross v. Am. Express Co., 547 F.3d 137, 17 142 (2d Cir. 2008) (quoting Swint v. Chambers County Comm’n, 514 18 U.S. 35, 51 (1995)). We recognize, however, that “pendent 19 appellate jurisdiction should be exercised sparingly, if ever.” 20 Mancuso v. N.Y. State Thruway Auth., 86 F.3d 289, 292 (2d Cir. 21 1996). 22 Here, Defendants-Appellants assert the collateral order 23 doctrine as the sole basis for appellate jurisdiction. They are15 1 correct that the doctrine provides for jurisdiction to the extent 2 their appeal turns on questions of law related to their immunity 3 defenses. However, they ask us to delve deeper. 4 First, Defendants-Appellants offer their version of the 5 contested facts surrounding Bolmer’s commitment. We lack 6 jurisdiction to compare their factual evidence with Bolmer’s. 7 See Salim, 93 F.3d at 90-91. Indeed, Defendants-Appellants’ 8 contention that Bolmer failed to provide evidence sufficient to 9 create an issue of fact as to the applicable medical standards 10 falls squarely within the category of evidence-sufficiency 11 arguments we may not review. See id. at 91; see also Grune v. 12 Rodriguez, 176 F.3d 27, 32 (2d Cir. 1999). We therefore dismiss 13 the appeal as to this argument, and confine our review to “the 14 facts favorable to [Bolmer] that the trial judge concluded the 15 jury might find,” including those it did not explicitly identify 16 but “‘likely assumed.’” Salim, 93 F.3d at 90 (quoting Johnson v. 17 Jones, 515 U.S. 304, 319 (1995)). 18 Second, Defendants-Appellants seek to reverse the denial of 19 summary judgment on Bolmer’s § 1983 Fourth Amendment claim. They 20 assert that the claim was abandoned. Defendants-Appellants do 21 not explain how the district court’s apparent denial of summary 22 judgment on this claim constitutes an appealable collateral 23 order, nor how the issue is “‘inextricably intertwined’” orOliveira does state in his reply brief that by discussing 1 perceived ambiguities in Rodriguez, Bolmer “has actually opened . 16 1 “‘necessary to ensure meaningful review’” of the immunity denials 2 such that we should exercise pendent jurisdiction. Ross, 547 3 F.3d at 142 (quoting Swint, 514 U.S. at 51). It was their duty 4 to do so. See Fed. R. App. P. 28(a)(4). Having failed to 5 explain a basis for appellate jurisdiction, and none being 6 apparent, we also dismiss the appeal to the extent it challenges 7 the denial of summary judgment on the Fourth Amendment claim. 8 II. Qualified Immunity 9 Government actors have qualified immunity to § 1983 claims 10 “‘insofar as their conduct does not violate clearly established 11 statutory or constitutional rights of which a reasonable person 12 would have known.’” Okin v. Vill. of Cornwall-On-Hudson Police 13 Dep’t, 577 F.3d 415, 432 (2d Cir. 2009) (quoting Harlow v. 14 Fitzgerald, 457 U.S. 800, 818 (1982)). As a state actor, 15 Oliveira is immune to Bolmer’s § 1983 substantive due process 16 claim if (1) the reviewable facts do not make out a violation of 17 Bolmer’s right to substantive due process, or (2) the right was 18 not clearly established at the time of Bolmer’s commitment. See 19 Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009). Oliveira 20 does not argue that Bolmer’s substantive due process right was 21 not clearly established. He is therefore entitled to qualified 1. . the door for Dr. Oliveria [sic] to make the argument that the

law was not clearly established.” (Reply Br. of DefendantsAppellants at 13.) But even if this excuses Oliveira’s raising the argument for the first time in his reply brief, the argument itself is insufficiently explained to merit review. See Norton v. Sam’s Club, 145 F.3d 114, 117-18 (2d Cir. 1998).

17 1 immunity only if, on the facts favorable to Bolmer that the 2 district court concluded a jury might find, he did not violate 3 Bolmer’s right to substantive due process. 4 The Due Process Clause of the Fourteenth Amendment has a 5 substantive component that bars certain state actions 6 “‘regardless of the fairness of the procedures used to implement 7 them.’” County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998) 8 (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). 9 Substantive due process prohibits states from involuntarily 10 committing nondangerous mentally ill individuals. See O’Connor 11 v. Donaldson, 422 U.S. 563, 575-76 (1975). It does not, however, 12 “require a guarantee that a physician’s assessment of 13 [dangerousness] be correct.” Rodriguez v. City of New York, 72 14 F.3d 1051, 1062 (2d Cir. 1995). Rather, we held in Rodriguez 15 that an involuntary commitment violates substantive due process 16 if the decision is made “on the basis of substantive and 17 procedural criteria that are . . . substantially below the 18 standards generally accepted in the medical community.” Id. at18 1 1063. What those standards are is a question of fact. Id.; see 2 also Olivier v. Robert L. Yeager Mental Health Ctr., 398 F.3d 3 183, 191-92 (2d Cir. 2005). 4 Some three years after our decision in Rodriguez, the 5 Supreme Court held in County of Sacramento v. Lewis that for 6 executive action to violate substantive due process, it must be 7 “so egregious, so outrageous, that it may fairly be said to shock 8 the contemporary conscience.” 523 U.S. at 847 n.8. The Court 9 indicated, however, that the shocks-the-conscience inquiry is not 10 a stand-alone test for determining whether particular executive 11 conduct violates substantive due process; rather, it provides a 12 framework for making such a determination. See id. at 847 13 (“While the measure of what is conscience shocking is no 14 calibrated yardstick, it does, as Judge Friendly put it, ‘poin[t] 15 the way.’” (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d 16 Cir. 1973))). Several principles support this framework. 17 First, “the constitutional concept of conscience shocking 18 duplicates no traditional category of common-law fault, but 19 rather points clearly away from liability, or clearly toward it, 20 only at the ends of the tort law’s spectrum of culpability.” Id. 21 at 848. Thus, “liability for negligently inflicted harm is 22 categorically beneath the threshold of constitutional due 23 process,” but “injuries . . . produced with culpability falling19 1 within the middle range, following from something more than 2 negligence but less than intentional conduct, such as 3 recklessness or gross negligence, is a matter for closer calls.” 4 Id. at 849 (internal quotation marks and citation omitted). 5 Second, whether particular executive action shocks the 6 conscience is highly context-specific. 7 “The phrase [due process of law] formulates a concept 8 less rigid and more fluid than those envisaged in other 9 specific and particular provisions of the Bill of Rights. 10 Its application is less a matter of rule. Asserted denial 11 is to be tested by an appraisal of the totality of facts 12 in a given case. That which may, in one setting, 13 constitute a denial of fundamental fairness, shocking to 14 the unive r sal sense of justice, may, in other 15 circumstances, and in the light of other considerations, 16 fall short of such denial.” 17 Id. at 850 (quoting Betts v. Brady, 316 U.S. 455, 462 (1942)). 18 Thus, “concern with preserving the constitutional proportions of 19 substantive due process demands an exact analysis of 20 circumstances before any abuse of power is condemned as 21 conscience shocking.” Id. 22 In Lewis, a Sacramento County sheriff’s deputy attempted to 23 stop two teenage boys who were speeding on a motorcycle. Id. at 24 836. When the teenagers refused to pull over, a high-speed chase 25 ensued. The chase ended when the motorcycle tipped over during a 26 sharp turn. The pursuing deputy was unable to avoid skidding 27 into the motorcycle passenger, Phillip Lewis, at 40 miles per20 1 hour. Lewis was pronounced dead at the scene. Lewis’s family 2 sued the County, its sheriff’s department, and the deputy under 3 42 U.S.C. § 1983, claiming that the deputy’s conduct violated 4 Lewis’s right to substantive due process. Id. at 837. The case 5 reached the Supreme Court on the issue of what level of 6 culpability a law enforcement officer must reach to violate 7 substantive due process in a pursuit case. Id. at 839. 8 The Court held that “high-speed chases with no intent to 9 harm suspects physically or to worsen their legal plight do not 10 give rise to liability under the Fourteenth Amendment, 11 redressible by an action under § 1983.” Id. at 854. Analogizing 12 a high-speed chase to a prison riot, the court noted that in 13 neither instance was there time for a responding officer to 14 ponder, and thus deliberate indifference was an inappropriate 15 standard for determining whether the officer’s conduct shocked 16 the conscience. Id. at 851-54. A higher degree of culpability 17 was required because the officer was “supposed to act decisively 18 and show restraint at the same moment.” Id. at 853. 19 In this case, Oliveira contends that the district court 20 erred by applying Rodriguez’s medical-standards test instead of 21 determining whether Oliveira’s conduct shocked the conscience 22 under Lewis. We conclude that the district court did not err by 23 applying Rodriguez, as that case imposed a rule for determining21 1 when an involuntary commitment violates substantive due process 2 that is consistent with Lewis’s shocks-the-conscience framework. 3 In other words, a physician’s decision to involuntarily commit a 4 mentally ill person because he poses a danger to himself or 5 others shocks the conscience, thereby violating substantive due 6 process, when the decision is based on “substantive and 7 procedural criteria that are . . . substantially below the 8 standards generally accepted in the medical community.” 9 Rodriguez, 72 F.3d at 1063. The principles enunciated in Lewis 10 support our conclusion. 11 First, Rodriguez’s medical-standards test does not impose 12 constitutional liability for conduct that is merely negligent. 13 In requiring that the commitment decision be the product of 14 criteria substantially below those generally accepted in the 15 medical community, Rodriguez imposes liability for conduct that 16 is at least grossly negligent. Lewis does not preclude liability 17 for such middle-range culpability. See 523 U.S. at 849. 18 Oliveira contends, however, that the district court found 19 his conduct to be no more than negligent, and thus even if 20 Rodriguez provides the applicable rule, the district court erred 21 in applying the rule in this case. He points to the district 22 court’s language granting him summary judgment on Bolmer’s false 23 imprisonment claim. According to Oliveira, since the false22 1 imprisonment claim was based on the same conduct as the 2 substantive due process claim, the court’s finding precluded 3 liability on the latter. Oliveira reads too much into the 4 district court’s language. The court found that Bolmer’s 5 allegations “could support a finding of negligence” or 6 “indifference,” but not “malice or wantonness” sufficient to 7 overcome sovereign immunity. Bolmer v. Oliveira, 570 F. Supp. 2d 8 301, 317 (D. Conn. 2008). This does not constitute a finding 9 that Bolmer’s allegations could show negligence but nothing more. 10 Second, the circumstances of an involuntary commitment 11 support the application of Rodriguez’s medical-standards test. 12 See Lewis, 523 U.S. at 850. Like the New York law in Rodriguez, 13 the Connecticut statute governing Bolmer’s emergency involuntary 14 commitment requires that the decision to commit be made by a 15 physician. See Conn. Gen. Stat. § 17a-502. As we stated in 16 Rodriguez, “[i]mplicit in [the statute’s] requirement that the 17 decision be made by a physician is the premise that the decision 18 will be made in accordance with the standards of the medical 19 profession.” 72 F.3d at 1063. A substantial departure from 20 those standards shocks the conscience because it removes any 21 “reasonable justification” for intentionally depriving the person 22 of his or her liberty. Lewis, 523 U.S. at 846 (emphasis added); 23 see also Youngberg v. Romeo, 457 U.S. 307, 323 (1982) (holding23 1 that a mentally disabled person could show a violation of 2 substantive due process if the decision to deny him training and 3 rehabilitation “is such a substantial departure from accepted 4 professional judgment, practice, or standards as to demonstrate 5 that the person responsible actually did not base the decision on 6 such a judgment”). 7 Finally, the post-Lewis case law does not convince us that 8 Rodriguez should be overruled. The Ninth Circuit has adopted 9 Rodriguez’s objective medical-standards analysis, Jensen v. Lane 10 County, 312 F.3d 1145, 1147 (9th Cir. 2002), and we have 11 consistently applied it, see Olivier, 398 F.3d at 188-91; Hogan 12 v. A.O. Fox Mem. Hosp., No. 08-5315-cv, 2009 WL 2972870, at *2 13 (2d Cir. Sept. 18, 2009) (summary order). We are aware that 14 other circuits have employed different analyses. See Benn v. 15 Univ. Health Sys., Inc., 371 F.3d 165, 174-75 (3d Cir. 2004) 16 (explaining that, “in view of the events that led to [the 17 plaintiff’s] commitment and the steps taken after his arrival at 18 [the psychiatric hospital, the doctors’] conduct was not 19 conscience-shocking”); James v. Grand Lake Mental Health Ctr., 20 Inc., No. 97-5157, 1998 WL 664315, at *7, *10 (10th Cir. Sept. 21 24, 1998) (order and judgment). However, the reasoning of those 22 cases does not persuade us that Rodriguez is no longer good law.We do not mean to exclude the possibility that a committing 2 physician’s improper motive or state of mind could on its own shock the conscience. See Olivier, 398 F.3d at 189-90 (discussing but declining to decide whether a commitment decision could comport with medical standards but nevertheless violate substantive due process because the committing physician acted with “improper motive or intent”).

24 1 Oliveira points to Monaco v. Hogan, 576 F. Supp. 2d 335 2 (E.D.N.Y. 2008), in which the district court discussed Rodriguez 3 but concluded that a commitment decision shocked the conscience 4 under Lewis only if the committing physicians acted with 5 deliberate indifference. Id. at 350-51. We disagree with the 6 Monaco court’s reasoning, as it failed to perceive that Rodriguez 7 itself measures what is conscience shocking in this context. We 8 do not read Lewis to require a subjective analysis of the 9 physician’s state of mind. 2 10 Having concluded that Rodriguez remains the proper test for 11 determining whether an involuntary commitment shocks the 12 conscience, we find no error here in the district court’s 13 application of Rodriguez. The court determined that genuine 14 issues of material fact existed both as to the facts surrounding 15 Bolmer’s commitment and the medical standards that should have 16 governed Oliveira’s conduct. Because the qualified immunity 17 issue turns on whether these facts show a substantive due process 18 violation, we agree that they are material. We lack jurisdiction25 1 to examine whether the factual issues are genuine. See Jones, 2 465 F.3d at 55. 3 Oliveira raises two additional challenges to the district 4 court’s denial of his qualified immunity claim. He argues first 5 that he could not have violated Bolmer’s right to substantive due 6 process because Danbury Hospital staff members, and not Oliveira, 7 were responsible for Bolmer’s commitment. Because Connecticut 8 law required the hospital to conduct its own examination of 9 Bolmer within 48 hours of his admission, see Conn. Gen Stat. § 10 17a-502(b), and presumably it did so, Oliveira contends that the 11 hospital’s decision to continue Bolmer’s commitment absolves him 12 of responsibility. This argument is specious. Oliveira examined 13 Bolmer, determined that he was dangerous and should be committed, 14 and signed the Emergency Certificate ordering Bolmer committed 15 “for no more than 15 days care and treatment in a mental 16 hospital.” At the very least, Oliveira is responsible for 17 depriving Bolmer of his liberty until the time of the hospital’s 18 determination. 19 Oliveira also claims that Bolmer’s substantive due process 20 claim cannot succeed because a more specific constitutional 21 provision – the Fourth Amendment – applies. We decline to 22 consider this argument as it was raised for the first time in26 1 Oliveira’s reply brief. See McCarthy v. S.E.C., 406 F.3d 179, 2 186 (2d Cir. 2005). 3 Because we cannot conclude as a matter of law that Oliveira 4 did not violate Bolmer’s right to substantive due process, we 5 affirm the denial of summary judgment on Oliveira’s qualified 6 immunity defense. 7 III. Eleventh Amendment Immunity 8 The Eleventh Amendment states that “[t]he Judicial power of 9 the United States shall not be construed to extend to any suit in 10 law or equity, commenced or prosecuted against one of the United 11 States by Citizens of another State, or by Citizens or Subjects 12 of any Foreign State.” U.S. Const. amend. XI. “Although the 13 Amendment, by its terms, bars only federal suits against state 14 governments by citizens of another state or foreign country, it 15 has been interpreted also to bar federal suits against state 16 governments by a state’s own citizens . . . .” Woods v. Rondout 17 Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 18 2006). 19 Eleventh Amendment immunity is not, however, immutable. 20 Under section five of the Fourteenth Amendment, Congress can 21 abrogate the immunity to enforce the substantive rights 22 guaranteed by the Fourteenth Amendment. See Tennessee v. Lane, 23 541 U.S. 509, 518 (2004). Congress has unambiguously purported27 1 to abrogate states’ immunity from Title II claims. See 42 U.S.C. 2 § 12202 (“A State shall not be immune under the eleventh 3 amendment to the Constitution of the United States from an action 4 in Federal or State court of competent jurisdiction for a 5 violation of this chapter.”). The extent to which Congress’s 6 abrogation is a constitutional exercise of its section five 7 authority has been the subject of much debate – some of it 8 esoteric. 9 In Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 10 280 F.3d 98 (2d Cir. 2001), we held that Congress had exceeded 11 its section five authority in enacting Title II, but that Title 12 II suits could be limited to circumstances in which it had not. 13 See id. at 110-11. We recognized that section five grants 14 Congress the authority to abrogate states’ immunity as to conduct 15 that actually violates the Fourteenth Amendment, as well as “‘a 16 somewhat broader swath of conduct’” that is constitutional but 17 which Congress may prohibit in order to remedy or deter actual 18 violations. Id. at 108 (quoting Bd. of Trs. of Univ. of Ala. v. 19 Garrett, 531 U.S. 356, 365 (2001)). We also recognized that this 20 latter, prophylactic authority is “subject to the requirement 21 that there be ‘congruence and proportionality between the 22 [violation] to be prevented or remedied and the means adopted to 23 that end.’” Id. (quoting City of Boerne v. Flores, 521 U.S. 507,28 1 520 (1997)). We therefore formulated a rule to limit Title II 2 suits to these two species of conduct. 3 In formulating this rule, we treated the plaintiff’s Title 4 II claim as grounded in the Equal Protection Clause of the 5 Fourteenth Amendment. See id. at 109 (discussing the Supreme 6 Court’s Equal Protection analysis in Garrett, 531 U.S. 356). 7 Since the Equal Protection Clause only proscribes disparate 8 treatment of the disabled that is not rationally related to a 9 legitimate government purpose, id., Title II suits could be 10 maintained against states only if the plaintiff showed “that the 11 Title II violation was motivated by discriminatory animus or ill 12 will based on the plaintiff’s disability,” id. at 111. And to 13 “lessen a plaintiff’s difficulty in establishing animus relative 14 to what would be demanded under traditional rational basis 15 review,” a plaintiff could “rely on a burden-shifting technique 16 similar to that adopted in McDonnell Douglas Corp. v. Green, 411 17 U.S. 792, 802-05 (1973), or a motivating-factor analysis similar 18 to that set out in Price Waterhouse v. Hopkins, 490 U.S. 228, 19 252-58 (1989).” Garcia, 280 F.3d at 112 (citations amended). 20 This rule, we reasoned, would reach conduct that failed rational 21 basis review and therefore violated Equal Protection, as well as 22 conduct that did not violate Equal Protection but which Congress29 1 could prohibit pursuant to its prophylactic authority. See id. 2 at 111-12. 3 Following our decision in Garcia, the Supreme Court decided 4 several cases concerning the extent to which Congress’s 5 abrogation of Eleventh Amendment immunity in Title II of the ADA 6 is constitutional. First, in Tennessee v. Lane the Court upheld 7 Congress’s abrogation in the context of courtroom accessibility. 8 541 U.S. at 531. It reasoned that in enacting Title II, Congress 9 sought to enforce not only Equal Protection, but also “a variety 10 of other basic constitutional guarantees, infringements of which 11 are subject to more searching judicial review.” Id. at 522-23. 12 With regard to courtroom accessibility, these guarantees included 13 litigants’ rights under the Due Process Clause of the Fourteenth 14 Amendment. See id. at 523. Thus, Title II was not wholly 15 premised on discrimination against the disabled that violates the 16 Equal Protection Clause. Among the decisions cited in support of 17 Title II’s enactment were cases concerning the mentally disabled. 18 The historical experience that Title II reflects is also 19 documented in this Court’s cases, which have identified 20 unconstitutional treatment of disabled persons by state 21 agencies in a variety of settings, including [1] 22 unjustified commitment, e.g., Jackson v. Indiana, 406 23 U.S. 715 (1972); [2] theabuse and neglect of persons 24 committed to state mental health hospitals, Youngberg v. 25 Romeo, 457 U.S. 307 (1982); and [3] irrational 26 discrimination in zoning decisions [concerning a home for 27 the mentally retarded ], Cleburne v. Cleburne Living 28 Center, Inc., 473 U.S. 432 (1985).30 1 Lane, 541 U.S. at 524-25 (footnote omitted and citations 2 amended). 3 Next, in United States v. Georgia, 546 U.S. 151 (2006), the 4 Court reaffirmed that, “insofar as Title II creates a private 5 cause of action for damages against the States for conduct that 6 actually violates the Fourteenth Amendment, Title II validly 7 abrogates state sovereign immunity.” Id. at 159. Noting, 8 however, that members of the Court had disagreed regarding the 9 scope of Congress’s prophylactic authority, and that it was 10 unclear what conduct the plaintiff intended to allege in support 11 of his Title II claims, the Court remanded for the lower court to 12 determine, 13 on a claim-by-claim basis, (1) which aspects of the 14 State’s alleged conduct violated Title II; (2) towhat 15 extent such misconduct also violated the Fourteenth 16 Amendment; and (3) insofar as such misconduct violated 17 Title II but did not violate the Fourteenth Amendment, 18 whether Congress’s purported abrogation of sovereign 1 9 immunityastothatclas so fconducti sneverthe less 20 valid. 21 Id. at 158-59. 22 Here, DMHAS contends that the district court erred by not 23 requiring that Bolmer show discriminatory animus or ill will 24 under Garcia. Bolmer responds that Garcia only applies to Title 25 II claims based on Equal Protection, and since his claim is based 26 solely on substantive due process, the district court properlyGiven Bolmer’s explicit rejection of any Equal Protection 3 basis for his Title II claim (Br. of Plaintiff-Appellee at 38-39 & n.9), we decline amici’s request to re-examine Garcia in light of Lane and Georgia (Br. of Amici at 10-15). 31 1 disregarded Garcia and decided the issue under Georgia. We agree 2 with Bolmer. 3 3 The threshold question is whether Congress’s abrogation may 4 be justified by its enforcement of the substantive due process 5 right not to be involuntarily committed absent a danger to self 6 or others. Under Lane, we think the answer to this question is 7 yes. The Court in Lane found that rights guaranteed by the Due 8 Process Clause were among the “variety of other basic 9 constitutional guarantees” Congress sought to enforce in Title 10 II. 541 U.S. at 522-23. And the history of unconstitutional 11 conduct reflected in Title II includes unconstitutional treatment 12 of the mentally disabled, including their unjustified commitment. 13 See id. at 524-25. 14 The next question is whether Garcia’s discriminatory animus 15 test is applicable where Congress’s abrogation of Eleventh 16 Amendment immunity is justified, if at all, by its enforcement of 17 the substantive due process right not to be involuntarily 18 committed absent a danger to self or others. Garcia’s 19 discriminatory animus requirement was designed to reach Title II 20 violations that also violate Equal Protection because they fail32 1 rational-basis review, as well as the broader swath of 2 constitutional conduct Congress could prohibit as necessary to 3 remedy and deter Equal Protection violations. See Garcia, 280 4 F.3d at 111-12. The test for whether an involuntary commitment 5 violated substantive due process is not rational-basis review; 6 rather, a commitment violates substantive due process if the 7 decision was made “on the basis of substantive and procedural 8 criteria that are . . . substantially below the standards 9 generally accepted in the medical community.” Rodriguez, 72 F.3d 10 at 1063. Whether or not Garcia survives Lane and Georgia, a 11 question we do not reach, it is quite clear that Garcia’s 12 discriminatory animus requirement for Equal Protection-based 13 claims cannot be applied to claims based solely on the 14 substantive due process right Bolmer alleges was violated here, 15 since the test for whether the constitution was violated in each 16 case is distinct. 17 Having determined that Garcia is not applicable here, a 18 question remains as to how to analyze Congress’s abrogation of 19 DMHAS’s Eleventh Amendment immunity to Bolmer’s Title II claim. 20 Under Georgia, Congress’s abrogation of DMHAS’s Eleventh 21 Amendment immunity to Bolmer’s Title II claim is valid if DMHAS 22 violated (1) Title II and (2) Bolmer’s right to substantive due 23 process. See 546 U.S. at 158-59. Because we cannot conclude as33 1 a matter of law that DMHAS did not violate Title II or Bolmer’s 2 right to substantive due process, we affirm the denial of summary 3 judgment as to this defense. 4 First, the reviewable facts may support Title II liability. 5 To establish a violation of Title II, Bolmer must show that (1) 6 he is a “qualified individual with a disability,” (2) DMHAS is 7 subject to the ADA, and (3) he was, “by reason of such 8 disability, . . . excluded from participation in or . . . denied 9 the benefits of the services, programs, or activities of a public 10 entity, or . . . subjected to discrimination by any such entity.” 11 42 U.S.C. § 12132; see Henrietta D. v. Bloomberg, 331 F.3d 261, 12 272 (2d Cir. 2003). The first two elements are not in dispute. 13 Bolmer contends that he has satisfied the third because DMHAS 14 discriminated against him when it concluded, based on a 15 stereotyped view of the disabled, that his relationship with 16 Kaminski was a delusion, and committed him on the basis of that 17 conclusion. 18 Both sides address the discrimination question under the 19 mixed-motive discrimination framework erected in Price Waterhouse 20 v. Hopkins, 490 U.S. 228 (1989). However, it is questionable 21 whether Title II discrimination claims can proceed on a mixed22 motive theory after the Supreme Court’s decision in Gross v. FBL 23 Financial Services, Inc., 129 S. Ct. 2343 (2009), where the Court34 1 held that the Age Discrimination in Employment Act of 1967 2 (“ADEA”), 29 U.S.C. § 621 et seq., does not authorize a mixed3 motive age-discrimination claim. 129 S. Ct. at 2350. Instead, 4 age discrimination must be the “but-for” cause of an adverse 5 employment action for ADEA liability to attach. Id. Ultimately, 6 we need not determine whether Bolmer may proceed with his Title 7 II claims on a mixed-motive theory, because even if Gross 8 requires him to show that DMHAS’s discriminatory stereotyping was 9 the “but-for” cause of his commitment, we cannot conclude as a 10 matter of law that he has failed to satisfy this more stringent 11 causation standard. 12 According to Bolmer, he had a sexual relationship with 13 Kaminski that no one would believe had occurred. GDMHA staff 14 incorrectly concluded that the relationship was a delusion, and 15 made Bolmer return to the GDMHA facility for an unnecessary 16 mental examination. Upon his return, Bolmer spoke loudly but did 17 not yell. Oliveira, who was unfamiliar with Bolmer, conducted a 18 mental examination that was non-individualized and cursory at 19 best; it involved little questioning and lasted only five 20 minutes. Throughout the examination, GDMHA staff looked at 21 Bolmer as if he were crazy. Oliveira rolled his eyes. Bolmer 22 attempted to convey that he was not angry by stating that “if 23 [he] was really angry that [he] would pick up the chair in the35 1 room and throw it.” Oliveira then ordered him committed to 2 Danbury Hospital. The hospital held Bolmer for two days, 3 releasing him only after discovering evidence on Bolmer’s cell 4 phone indicating that his relationship with Kaminski was not a 5 delusion. 6 These allegations could support a conclusion that (1) Bolmer 7 had a sexual relationship with Kaminski, (2) DMHAS staff 8 incorrectly assumed that the relationship was a delusion based on 9 a stereotyped view of the mentally ill, and (3) but for this 10 assumption, Bolmer would not have been committed. Thus, even if 11 Gross prohibits Bolmer from proceeding on a mixed-motive theory, 12 he has adequately alleged discrimination that was the but-for 13 cause of his commitment. 14 Second, as discussed above, the reviewable facts could show 15 that DMHAS employee Oliveira violated Bolmer’s right to 16 substantive due process, thereby satisfying the second prong of 17 Georgia. 18 Finally, as Bolmer’s success on the first and second prongs 19 of Georgia would make an analysis under the third prong 20 unnecessary, we decline to address that prong here. 21 In sum, we hold with regard to DMHAS’s Eleventh Amendment 22 immunity defense that (1) Garcia is not applicable when 23 Congress’s abrogation is supported by its enforcement of the36 1 substantive due process right not to be involuntarily committed 2 absent a danger to self or others; and (2) under Georgia and 3 Lane, Congress validly abrogated states’ Eleventh Amendment 4 immunity where the same conduct by the defendant violated both 5 Title II and substantive due process. Because we cannot conclude 6 as a matter of law that DMHAS did not violate Title II or 7 Bolmer’s right to substantive due process, we affirm the denial 8 of summary judgment on this defense. 9 CONCLUSION 10 For the foregoing reasons, we DISMISS the appeal to the 11 extent it (1) contests the district court’s determination that 12 Bolmer put forth sufficient evidence of the relevant medical 13 standards to create a material issue of fact, and (2) argues that 14 Bolmer abandoned his Fourth Amendment claim. We AFFIRM the 15 denial of summary judgment on Defendants-Appellants’ qualified 16 immunity and Eleventh Amendment immunity defenses.