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 had
2

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.

33
3

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 is
5

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 this
7

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 not
8

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

12 which could satisfy the intentionality required by the

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 differing
11

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 process
12

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 the
14

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 are
15

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’” or
 Oliveira 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. at
18

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 falling
19

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 universal 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 per
20

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 determining
21

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 false
22

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) (holding
23

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 jurisdiction
25

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 in
26

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 purported
27

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 Congress
29

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] the abuse 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) to what

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

19 immunity as to that class of conduct is nevertheless

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 properly
 Given 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 fail
32

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 as
33

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 Court
34

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 the
35

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 the
36

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.