Wright, Vargas, Dixon, et al. v. Giuliani, Docket No. 00-7853

• Citation: 230 F.3d 543
• Decision Date: 01 August 2000
• Docket Number: No. 823--,Docket No. 00-7853,823--
• Parties: (2nd Cir. 2000) ZONELL WRIGHT, SIMON VARGAS, TARA DIXON, MARIO LAMBOY, and ROBERT THOMPSON, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. RUDOLPH GIULIANI, as Mayor of the City of New York, JASON TURNER, as Commissioner of the Human Resources Administration of the City of New York, Department of Social Services, and GREGORY CALDWELL, as Deputy Commissioner of AIDS Services Income Support of the City of New York, Defendants-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 543

230 F.3d 543 (2nd Cir. 2000)

ZONELL WRIGHT, SIMON VARGAS, TARA DIXON, MARIO LAMBOY, and ROBERT THOMPSON, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. RUDOLPH GIULIANI, as Mayor of the City of New York, JASON TURNER, as Commissioner of the Human Resources Administration of the City of New York, Department of Social Services, and GREGORY CALDWELL, as Deputy Commissioner of AIDS Services Income Support of the City of New York, Defendants-Appellees.

Docket No. 00-7853

No. 823--August Term, 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: September 26, 2000

Decided: October 25, 2000

Appeal from a judgment of the United States District Court for the Southern District of New York, William H. Pauley, Judge, denying, inter alia, plaintiffs' motion for a preliminary injunction.

Affirmed.

ARMEN H. MERJIAN, New York, N.Y. (Russell E. Brooks, on the brief), for Plaintiffs-Appellants.

MARTA ROSS, New York, N.Y. (Edward F.X. Hart and Georgia Pestana, on the brief), for Defendants-Appellees.

Before: CARDAMONE, McLAUGHLIN and JACOBS, Circuit Judges.

PER CURIAM:

Plaintiffs, five homeless individuals who have been diagnosed with clinical symptomatic Human Immunodeficiency Virus ("HIV") or Advanced Immune Deficiency Syndrome ("AIDS"), brought suit on behalf of themselves and a putative class alleging that various officials of the City of New York have failed to provide them with emergency housing that accommodates their disability, as required by Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (the "Rehabilitation Act") and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 (the "ADA"). On expedited appeal, they challenge the portion of a memorandum and order entered June 14, 2000 in the United States District Court for the Southern District of New York (Pauley, J.) denying their request for preliminary injunctive relief. We affirm for the reasons set forth below.

BACKGROUND

Plaintiffs challenge the adequacy of emergency housing administered by the New York City Human Resources Administration ("HRA") Division of AIDS Services Income Support ("DASIS"). Plaintiffs are all eligible for emergency housing provided by DASIS, and have resided in such housing; but they claim that their precarious health is endangered by living there, and that therefore they have been denied meaningful access to emergency shelter in violation of the Rehabilitation Act and the ADA.

The undisputed facts of the case and the parties' allegations have been admirably summarized by the district court, and need no reformulation:

AIDS/HIV

HIV, the virus that causes AIDS, attacks the immune system and leaves the body unable to ward off infection and disease. People with HIV develop numerous illnesses and physical conditions not found in the general population and experience manifestations of common illnesses that are much more aggressive, recurrent, and difficult to treat. Infections and cancers spread more rapidly in a person whose immune system is compromised, and the effectiveness of medicine is reduced by nutritional problems that limit the body's ability to absorb what is ingested.

The opportunistic infections and chronic conditions that result from a weakened immune system limit the HIV-infected person's ability to engage in many common activities of daily living, such as standing and walking. Individuals with HIV or AIDS have difficulties obtaining adequate nutrition. Illness and infection often limit appetite and the body's ability to absorb nutrients. Common HIV-related conditions such as nausea and oral thrush can limit an individual's ability to swallow and eat properly. Due to HIV-related diseases, many HIV-infected people have dietary restrictions.

Many of the drugs regularly prescribed to combat HIV, AIDS and related conditions have side effects that also cause functional limitations. Some of these side effects include anemia, severe nausea, diarrhea, abdominal pain, pancreatitis and muscle wasting. An individual taking these medications will likely be restricted in his ability to walk, stand, or travel. Many of the drugs must be taken several times a day, some on an empty stomach and some with food. Apart from this daily regimen, the medications frequently require refrigeration.

DASIS

In 1985, New York City ("the City") established DASIS to assist individuals with advanced HIV-related disease or AIDS to access public benefits and services provided by HRA. On June 25, 1997, the New York City Council codified the existence of DASIS and delineated certain benefits and services for indigent New Yorkers with clinical/symptomatic HIV illness and AIDS. See N.Y. City Admin. Code §§ 21-126 to 21-128 (1997) (the "DASIS Law"). One of the benefits provided by the DASIS Law is "medically appropriate transitional and permanent housing" to "every eligible person with clinical/symptomatic HIV illness or with AIDS who requests assistance." DASIS Law § 21-128(b).

Homeless, single adult City residents who do not qualify for DASIS benefits are housed in congregate shelters, while DASIS clients are placed in either transitional supported housing or commercial single room occupancy hotels ("SROs"). Since transitional supported housing offers more structure and services, DASIS initially attempts to place its clients there. If transitional supported housing is unavailable, then DASIS clients are placed in an SRO run by the Department of Homeless Services' Emergency Assistance Unit ("EAU").

Under the DASIS Law, emergency housing provided to DASIS clients must be "suitable for persons with severely compromised immune systems" and "shall include, but not be limited to, individual refrigerated food and medicine storage and adequate bathroom facilities which shall, at a minimum, provide an effective locking mechanism and any other such measures as are necessary to ensure privacy." DASIS Law § 21-128(a)(4).

Plaintiffs claim that the SROs fail to meet DASIS Law standards and are uninhabitable. For example, plaintiff Zonell Wright was housed in the 12 Towns YMCA SRO in Brooklyn, New York. Although Wright had been prescribed AIDS medication that had to be taken with food, he did not have a refrigerator in his room. As a consequence, Wright paid a friend to store food in his refrigerator and to cook it in his kitchen. When Wright was transferred to emergency housing in Manhattan, he asked his doctor to prescribe him a medication that did not need to be taken with food because he could not store food in his room.

Two months later, DASIS placed Wright in the Allerton Hotel (the "Allerton"), an EAU SRO. Wright describes the Allerton as a rodent and cockroach-infested abode with no ventilation and a filthy bed. Once again, there was no refrigerator in the room. Wright's bathroom served sixteen rooms, some with more than one resident. It, too, was filthy.

After seven days in the Allerton, Wright was transferred to a YMCA, where he currently resides. The YMCA does not permit residents to have refrigerators. Like the other two SROs in which Wright was housed, the YMCA is dirty and rodent infested. He shares a bathroom with forty other people that is cleaned once a day and lacks basic amenities, including toilet seat covers and soap.

The other named plaintiffs in this action describe similar living conditions at their SROs. In addition, plaintiff Simon Vargas describes how one unnamed DASIS client with prosthetic legs was forced to walk up five flights of stairs to his room because the SRO did not have an elevator. In contrast to Wright, the other plaintiffs stayed in the emergency housing to which they were assigned.

Wright et al. v. Giuliani, No. 99 Civ. 10091, 2000 WL 777940, at *1-*3 (S.D.N.Y. June 14, 2000).

Plaintiffs commenced this action on September 29, 1999, seeking, in relevant part, a preliminary injunction compelling defendants: (i) to ensure that each DASIS client is provided with a functioning refrigerator, an individual locking mechanism on the bathroom, a clean mattress in good repair, clean linens in good repair at least weekly, a sufficient supply of toilet paper, a bathroom cleaned at least twice a day, and permission to store and consume food and drink in their rooms; (ii) to maintain security to prohibit illegal activities in the common areas of emergency housing; and (iii) to design and implement sensitivity training for all personnel working in the emergency housing.

The district court denied plaintiffs' request for preliminary injunctive relief. The court began its discussion by reciting the rigorous standard that plaintiffs must satisfy for a preliminary injunction in this case: a "clear" or "substantial" likelihood of success on the merits.

The court ruled that plaintiffs could not establish a likelihood of success on the basis of what it found to be an incomplete record. The court determined that it could not decide whether the emergency housing that DASIS clients receive is "adequate" without comparing it to the quality of the emergency housing the City provides to the able-bodied, a comparison that plaintiffs argue is irrelevant.

The district court construed Circuit precedent to require that in any Rehabilitation Act or ADA analysis, "courts must focus on the specific services provided to the able-bodied and compare them to the services provided to the disabled." The court emphasized that the Rehabilitation Act and the ADA guarantee no specific benefits; they require only that "the particular benefits provided to the able-bodied be meaningfully accessible to the disabled," and therefore, "the relevant question is not the amorphous concept of emergency housing, but whether plaintiffs have access to the particular emergency housing granted to able-bodied, homeless New York City residents." The court concluded that on the present state of the record, plaintiffs could not demonstrate that they lacked "meaningful access" to emergency...