Thomas-Ateba v. Samhsa of the U.S. Gov't, 13-CV-4662 (ARR)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtAllyne R. Ross
Decision Date10 April 2014
Docket Number13-CV-4662 (ARR)


13-CV-4662 (ARR)


Dated: April 10, 2014



ROSS, United States District Judge:

Plaintiff Jacqueline Thomas-Ateba, proceeding pro se, brings this action against defendants Substance Abuse and Mental Health Services, a sub-agency of the United States Department of Health and Human Services ("HHS-SAMHSA"); the New York State Office of Alcohol and Substance Abuse Services ("OASAS"); and the International Certification Reciprocity Consortium ("ICRC"). Plaintiff asserts claims under 42 U.S.C. § 1985, the Thirteenth Amendment, and the Fourteenth Amendment. She seeks an order granting her a professional credential as an alcoholism and substance abuse counselor as well as damages. The three defendants have each brought a motion to dismiss. For the reasons set forth below, defendants' motions are granted, and plaintiff's complaint is dismissed with prejudice.


The following facts are drawn from plaintiff's complaint, from documents attached as exhibits to the complaint, and from regulations cited in the complaint.

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Defendant OAS AS is a New York State agency that, among other responsibilities, issues credentials to professionals who provide alcoholism and substance abuse counseling. The agency's regulations set forth the procedure for obtaining certification as a Credentialed Alcoholism and Substance Abuse Counselor ("CASAC"). An applicant who has completed at least 350 hours of education and training can receive certification as a CASAC trainee. 14 N.Y.C.R.R. § 853.6(b). A CASAC trainee must then satisfy additional requirements in order to receive CASAC certification. At issue here are two of those certification requirements: an applicant must complete at least 6,000 hours of supervised work experience in an approved setting, 14 N.Y.C.R.R. § 853.5(h), and pass an examination, 14 N.Y.C.R.R. § 853.14(a).

Plaintiff fulfilled the education and training requirement and received CASAC trainee certification on April 17, 2006. Compl., Dkt. #1, at ECF 30, 33. In 2011, OASAS granted plaintiff a three-year extension of her trainee certification, valid through March 21, 2014. Id. at ECF 31-32. Plaintiff's trainee certification cannot be further extended, nor can plaintiff apply a second time for trainee certification. 14 N.Y.C.R.R. §§ 853.6(d)-(e). In June 2011, plaintiff took the Alcohol and Drug Counselor Examination administered by defendant ICRC, a professional testing company. Compl. at ECF 22. In a letter dated July 8, 2011, OASAS informed plaintiff that she had passed the examination but still needed to complete 6,000 hours of work experience and submit "the appropriate evaluations of competency and ethical conduct" in order to receive CASAC certification. Id. at ECF 21.

On September 1, 2011, plaintiff filed a "Request for Waiver From OASAS Regulations" seeking an exemption from the work experience requirement. Id. at ECF 3, 18-20. Plaintiff asserted that she was having difficulty finding employment or internship placements due to a weak job market. Id. at ECF 19. Plaintiff also sent a letter to OASAS complaining of the

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difficulty she was having in satisfying the work requirement and copied defendant HHS-SAMHSA on the letter. Id. at ECF 3, 15-17.1 On February 3, 2012, the OASAS Waiver Review Committee sent plaintiff a letter denying her waiver request. Id. at ECF 4-5. The committee told plaintiff that she still needed 4,422 hours of work experience and had "plenty of time" to accrue these hours before her trainee certification expired. Id. at ECF 5.

While awaiting a response to her waiver request, plaintiff also filed an Article 78 proceeding against OASAS in New York Supreme Court, Queens County. Id. at ECF 4, 23. After OASAS denied plaintiff's waiver request, the state court dismissed plaintiff's case. Decl. of Adam Sansolo, Dkt. #25, Ex. 2, at ECF 7. In an order dated May 29, 2012, the court found that plaintiff had failed to state a claim that the agency's denial of the waiver request was "arbitrary and capricious, an abuse of discretion, or lacks a rational basis in the law or the record." Id. The court also held that it lacked mandamus power to compel the agency to issue the CASAC certificate because the power to grant a waiver request "is in the sole discretion of the [OASAS] Commissioner." Id.

Plaintiff now brings this complaint alleging that defendants violated her federal and constitutional rights. In essence, plaintiff asserts that she was misled by a change in OASAS regulations. Prior to 2010, applicants could not take the CASAC examination until they had first completed all of the other certification requirements, so the examination was "traditionally the last step in the State's process" for certification. Compl. at ECF 5. In 2010, OASAS amended its regulations to allow applicants to take the examination before completing the work experience requirement. Id. at ECF 7. Plaintiff asserts that this change in the regulations led her to believe that she would receive CASAC certification once she took and passed the examination. Id. at

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ECF 5, 7. Plaintiff brings a claim under 42 U.S.C. § 1985, alleging that defendants have conspired to violate her civil rights by requiring her to go through a "dead-end" certification process and fraudulently inducing her to take an examination "that yields absolutely NOTHING when passed." Id. at ECF 6, 12. She also alleges that the work experience requirement violates the Thirteenth Amendment prohibition on slavery and involuntary servitude. Id. at ECF 7. Plaintiff also appears to claim that defendants violated her procedural due process rights under the Fourteenth Amendment. She asserts that defendants are withholding her property, since she paid to take the examination and is entitled to a license. Id. at ECF 6.2 Plaintiff seeks CASAC certification and $755,511 in damages. Id. at ECF 12-13.

All three defendants have brought motions to dismiss. Defendant HHS-SAMHSA brings its motion pursuant to Federal Rule of Civil Procedure 12(b)(1) on the ground that the court lacks subject matter jurisdiction over plaintiff's claims against the federal agency, and in the alternative under Rule 12(b)(6). Defendants OASAS and ICRC bring their motions pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted.


I. HHS-SAMHSA's Motion to Dismiss for Lack of Subject Matter Jurisdiction

A. Standard of Review

"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v.

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United States, 201 F.3d 110, 113 (2d Cir. 2000). As the party seeking to invoke the jurisdiction of the court, plaintiff bears the burden of demonstrating that subject matter jurisdiction is proper based on a preponderance of the evidence. Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). In resolving a motion to dismiss pursuant to Rule 12(b)(1), the court must accept as true all material factual allegations in the complaint but will not draw inferences favorable to the party asserting jurisdiction. J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004); Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). The court may consider affidavits and other materials beyond the pleadings but cannot "rely on conclusory or hearsay statements contained in the affidavits." J.S. ex rel. N.S., 386 F.3d at 110; see also Robinson v. Gov't of Malaysia, 269 F.3d 133, 140-41 & n.6 (2d Cir. 2001).

B. Sovereign Immunity

Defendant HHS-SAMHSA argues that the court lacks subject matter jurisdiction over plaintiff's claims against it because the federal government has not waived its sovereign immunity. It is well settled that "[t]he United States, as sovereign, is immune from suit save as it consents to be sued . . . , and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Mitchell, 445 U.S. 535, 538 (1980); Dotson v. Griesa, 398 F.3d 156, 177 (2d Cir. 2005). Therefore, "[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from suit," and the court lacks subject matter jurisdiction over the claim. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). A waiver of sovereign immunity must be "unequivocally expressed in statutory text, and cannot simply be implied." Adeleke v. United States, 355 F.3d 144,150 (2d Cir. 2004) (internal quotation marks omitted).

The government has not waived its sovereign immunity for any of the claims asserted in this case. Plaintiff alleges a conspiracy to violate her civil rights under 42 U.S.C. § 1985, but the

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government has not waived its sovereign immunity for claims under this statute. Jones v. Nat'l Commc'n & Surveillance Networks, 409 F. Supp. 2d 456, 466 (S.D.N.Y. 2006) (dismissing § 1985 claim on...

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