State Of Conn. Office Of Prot. And Advocacy For Persons With Disabilities v. The State Of Conn.

Decision Date31 March 2010
Docket NumberCivil Case No. 3:06CV00179(AWT).
Citation706 F.Supp.2d 266
PartiesSTATE OF CONNECTICUT OFFICE OF PROTECTION AND ADVOCACY FOR PERSONS WITH DISABILITIES, Shannon Hemmingsen, Samuel Rivera, Gale Yencha, Norma Jean Diaz, And Agatha Johnson, individually and on behalf of other similarly situated individuals, Plaintiff,v.The State of CONNECTICUT, Michael P. Starkowski, in his official capacity as Commissioner of the Connecticut Department of Social Services, Thomas A. Kirk, Jr., PhD., in his official capacity as Commissioner of the Connecticut Department of Mental Health and Addiction Services, and J. Robert Galvin, M.D., M.P.H., in his official capacity as Commissioner of the Connecticut Department of Public Health, Defendants.
CourtU.S. District Court — District of Connecticut
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Andrew S. Penn, Ira A. Burnim, Karen A. Bower, Bazelon Center for Mental Health Law, Michael Gerhart Allen, Relman & Dane, PLLC, Washington, DC, Danielle A. Walsman, Joseph E. Strauss, Ken Pasquale, Kevin J. Curnin, Stroock & Stroock & Levan, LLP, New York, NY, Nancy B. Alisberg, State of Connecticut Office of Prot. & Adv. for Handicapped, Hartford, CT, for Plaintiff.

Hugh Barber, Daniel R. Shapiro, Jacqueline S. Hoell, Richard J. Lynch, Attorney General's Office, Hartford, CT, for Defendants.

RULINGS ON DEFENDANTS' MOTIONS TO DISMISS AND PLAINTIFFS' MOTION FOR CERTIFICATION OF CLASS

ALVIN W. THOMPSON, District Judge.

The State of Connecticut Office of Protection and Advocacy for Persons With Disabilities (OPA) and Shannon Hemmingsen, Samuel Rivera, Gale Yencha, Norma Jean Diaz, and Agatha Johnson (the Individual Plaintiffs) bring this action on behalf of more than 200 individuals with mental illness who reside in three nursing facilities in Connecticut, and on behalf of individuals with mental illness who are at risk of entry into those facilities, against defendants the State of Connecticut; Michael P. Starkowski, in his official capacity as Commissioner of the Connecticut Department of Social Services; Thomas A. Kirk, Jr., Ph.D., in his official capacity as Commissioner of the Connecticut Department of Mental Health and Addiction Services; and J. Robert Galvin, M.D., M.P.H., in his official capacity as Commissioner of the Connecticut Department of Public Health. The plaintiffs have moved to certify a class of individuals consisting of those who:

(1) have a mental illness or have a record of such an illness or have been regarded as having such an illness and therefore have a disability within the meaning of 42 U.S.C. § 12102(2);
(2) with appropriate supports and service, could live in the community; and
(3) are institutionalized in either Chelsea Place Care Center in Hartford (“Chelsea Place”), Bidwell Care Center in Manchester (“Bidwell”), or West Rock Health Care Center in New Haven (“West Rock”)(collectively, the “Nursing Homes”), or are at risk of entry into these facilities.

(Motion to Certify Class (Doc. No. 129)(“Pls. Class Mot.”) at 2.) The defendants have filed two motions to dismiss, asserting in their 12(b)(6) motion that the plaintiffs have failed to state claims upon which relief can be granted, and asserting in their 12(b)(1) motion that no plaintiff has standing to assert any of the claims. For the reasons set forth below, the defendants' motions to dismiss are being denied and the plaintiffs' motion to certify class is being denied to the extent that the plaintiffs seek to have Agatha Johnson named as a class representative and granted in all other respects.

I. BACKGROUND

OPA is an authorized protection and advocacy agency as provided for by the Protection and Advocacy for Mentally Ill Individuals Act of 1986, 42 U.S.C. § 10801 et seq. (“PAMII”). PAMII grants OPA the authority to “pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care and treatment in the State....” 42 U.S.C. § 10805(a)(1)(B). Congress enacted PAMII in 1986 “to ensure that the rights of individuals with mental illness are protected” and “to assist States to establish and operate a protection and advocacy system for individuals with mental illness which will ... protect and advocate the rights of such individuals through activities to ensure the enforcement of the Constitution and Federal and State statutes....” 42 U.S.C. §§ 10801(b)(1), 10801(b)(2)(A).

A Board of Protection and Advocacy for Persons with Disabilities (the Advocacy Board) was established by the Connecticut legislature.
The advocacy board shall advise the executive director of the Office of Protection and Advocacy for Persons with Disabilities on matters relating to advocacy policy, client service priorities and issues affecting persons with disabilities. Said advocacy board shall consist of fifteen members appointed by the Governor and be comprised of ten persons with disabilities or a parent or guardian of a person with a disability, at least four of whom shall represent developmentally disabled persons, and five persons who are knowledgeable in the problems of persons with disabilities including the state Americans with Disabilities Act coordinator and the chairperson for the Advisory Board of the Protection and Advocacy for Individuals with Mental Illness Program.

Conn. Gen.Stat. § 46a-9. OPA was established pursuant to Conn. Gen.Stat. § 46a-10. Pursuant to Conn. Gen.Stat. § 46a-10, the operations of OPA are administered by the executive director of that office. The executive director may “adopt regulations ... subject to the approval of [the Advocacy Board] ...” Conn. Gen.Stat. § 46a-10.

In addition, as required by 42 U.S.C. § 10805(a)(6), OPA has established a PAMII advisory council (the Advisory Council) which “will advise the system on policies and priorities to be carried out in protecting and advocating the rights of individuals with mental illness ...” 42 U.S.C. § 10805(a)(6). Nine of the ten Advisory Council members are consumers of mental health services in Connecticut. As part of its official duties, the Advisory Council holds public meetings throughout the state, reviews budgets and significant proposed expenditures, and receives quarterly reports from the Executive Director.

The plaintiffs' factual contentions include the following:

Among other things, Plaintiffs allege that Defendants have systematically failed to provide the Proposed Class with services in the most integrated setting appropriate to their needs, and instead have kept them needlessly segregated, inappropriately warehoused, and left without safeguards to ensure that they are discharged from the Nursing Homes when appropriate. Defendants have also systematically failed to inform the Proposed Class of their right to community services, and failed to provide services with reasonable promptness. Defendants have failed to enact policies or practices that assure that their services are administered to Plaintiffs in the most integrated setting appropriate to their needs ...

(Pls. Class Mot. at 2.) The First Amended Complaint contains the following claims: in Count I, as to the individual defendants only, for violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the “ADA”), mandate to administer services and programs in the most integrated setting appropriate; in Count II, as to the individual defendants only, for violation of the ADA's prohibition on using methods of administration that subject individuals with disabilities to discrimination; in Count III, as to all defendants, for failure to administer services in the most integrated setting appropriate in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (the Rehabilitation Act); and in Count IV, as to all defendants, for violation of the Rehabilitation Act's prohibition on using methods of administration that subject individuals with disabilities to discrimination. The plaintiffs seek declaratory and injunctive relief that would require the defendants to promptly take such steps as are necessary to enable members of the putative class to receive services in the most integrated setting appropriate to their needs. OPA alleges that its constituents have each suffered injuries that would allow them to bring suit against the defendants in their own right.

II. MOTION TO DISMISS-Rule 12(b)(6)A. Legal Standard

When deciding a motion to dismiss under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint and must draw inferences in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Although a complaint “does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all allegations in the complaint are true (even if doubtful in fact).” Id. (citations omitted). The plaintiff must plead “only enough facts to state a claim to relief that is plausible on its face.” Id. at 1974. “The function of a motion to dismiss is ‘merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.’ Mytych v. May Dept. Stores Co., 34 F.Supp.2d 130, 131 (D.Conn.1999), quoting Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984). “The issue on a motion to dismiss is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims.” United States v. Yale New Haven Hosp., 727...

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