Supreme Court, Putnam County, September 5, 2023

Letitia James, Attorney General, White Plains (Terrance K. DeRosa of counsel), for respondents.

Disability Rights New York, Rensselaer (Benjamin W. Taylor and Jessica K. Cochrane of counsel), for petitioner.

It is ordered that respondents' motion for dismissal of the first amended complaint is disposed of as follows:

Petitioner Matthew P., a 26-year-old man with severe autism, was arrested on April 27, 2022, for burglary and incarcerated at the Putnam County Correctional Facility. After a competency hearing in the Justice Court of the Town of Patterson, Judge Michael V. Caruso on July 27, 2022, issued a written order pursuant to CPL 730.60 that Matthew be "committed to the custody of Commissioner of the Office for People with Developmental Disabilities for care and treatment in an appropriate institution for a period not to exceed 90 days from the date of this order." On the following day, petitioner's attorney forwarded a copy of Judge Caruso's order to counsel for the Office for People with Developmental Disabilities (hereinafter OPWDD) and asked when Matthew would be transferred from jail to an OPWDD facility. On August 4, 2022, OPWDD replied:

"The plan for admitting [Mr. P.]—and others whose admissions are also paused—is to first take into account our ability to align our census with our staffing resources and—when admissions are possible—to then admit individuals based on key criteria including the existence of Court orders, the length of time they have been waiting, and the acuity of their respective clinical needs."

On August 11, 2022, in response to a request for an updated status, OPWDD stated:

"[W]hile we haven't been able to alleviate the staffing shortage in the past week, we are monitoring Matthew's status and are in contact with Putnam Mental Health, the Jail and County DSS, and returned calls to the Court and defense counsel. As{**80 Misc 3d at 952} of our last contact, we understood that he was doing better. We are limited by circumstances largely outside our control in regard to our ability to admit additional individuals, but share the concern for his welfare and will continue to undertake best efforts to facilitate his admission to our facility."

On August 23, 2022, a verified petition containing six claims for relief was filed on Matthew's behalf. Petitioner asserted that (1) Matthew's continued incarceration violated his substantive due process rights under the Constitutions of the United States and State of New York; (2) he was entitled to habeas corpus relief; (3) his incarceration violated the Mental Hygiene Law; (4) his incarceration violated Judge Caruso's order; (5) OPWDD's failure to remove him from jail constituted discrimination in violation of title II of the Americans with Disabilities Act (ADA) (42 USC § 12132); and (6) the failure to remove him from jail violated section 504 of the Rehabilitation Act (29 USC § 794). Petitioner sought injunctive relief on all claims, monetary damages on his ADA claim, and declaratory relief on all other claims.

By order to show cause dated August 24, 2022, this court directed service of process to be made upon the respondent, OPWDD Commissioner Neifeld, via email to her General Counsel and Deputy Commissioner, and ordered a hearing on August 26, 2022. The court thereupon granted petitioner's request for injunctive relief and ordered respondent Neifeld to remove Matthew from jail and provide him with care and services in an appropriate facility no later than 5:00 p.m. on August 29, 2022. Pursuant to the court's order, Matthew was transferred on August 29th from the Putnam County Jail to the Sunmount Developmental Center.

Respondent then moved for dismissal of the petition. By prior decision and order dated February 23, 2023 (78 Misc 3d 1052 [Sup Ct, Putnam County 2023]), the court held that it had jurisdiction per CPLR 103 (c) to convert petitioner's special proceeding to an action. However, upon a finding that petitioner's claims for declaratory relief had been mooted by his transfer from the Putnam County Jail to the Sunmount Developmental Center, the court declined to exercise its authority under CPLR 103 (c) with respect to the first, third, fourth and sixth claims in the petition, and granted respondent's motion for dismissal of those claims. Finally, the court held that the petition failed to state a claim for relief under ADA title II.{**80 Misc 3d at 953} The court therefore dismissed the petition "without prejudice, and with leave to file . . . an amended complaint, limited in accordance with this decision, repleading a claim for monetary damages under title II of the Americans with Disabilities Act" (id. at 1074).

The complaint alleges that Matthew is a disabled individual, having been diagnosed with autism spectrum disorder, Lyme's disease and Pediatric Acute-Onset Neuropsychiatric Syndrome (PANS) (¶ 31). He was arrested on April 27, 2022, for burglary and incarcerated at the Putnam County Jail (¶¶ 38-42). Upon a finding of Matthew's incompetency to stand trial, the Justice Court on July 27, 2022, issued an order directing that he be "committed to the custody of Commissioner of the [OPWDD] for care and treatment in an appropriate institution for a period not to exceed 90 days from the date of this order" (¶¶ 52-53). Despite Judge Caruso's order, Matthew remained in jail for 33 days until this court ordered his release (¶ 55). Unable to access necessary care and treatment at the jail, Matthew was regressing and was regularly restrained on high dosages of medication (¶¶ 56-62). Matthew's admittance to an OPWDD facility was delayed, purportedly on account of staff shortages (¶¶ 63-80; see supra at 951-952).

The complaint further alleges:

"84. Pursuant to CPL § 730.60, OPWDD has a statutory duty to provide care and treatment to individuals with developmental disabilities placed in its custody.

"85. OPWDD operates the facilities in which a person referred to its custody pursuant to CPL § 730.60 are directed to receive placement and services.

"86. OPWDD also operates numerous Individualized Residential Alternatives ('IRAs') where it could provide care and treatment to Matthew as CPL § 730 contemplates 'community restoration' as an alternative form of more integrated restoration.

"87. On information and belief, during the time period{**80 Misc 3d at 954} in question there were open beds at Respondents' facilities for providing care and treatment to individuals deemed to lack capacity pursuant to Article 730 of the CPL.

"88. On information and belief, during the time period in question there were open beds at community residences operated and certified by Respondents where Respondents also can provide care and treatment to individuals deemed to lack capacity pursuant to Article 730 of the CPL.

"89. OPWDD's annual budget for the year 2022 was 4.9 billion dollars. As such, Respondents had adequate funding to remove Petitioner from jail expeditiously.

"90. Sued in her official capacity as Commissioner of OPWDD, Respondent Neifeld had actual knowledge that Petitioner was in jail and that there was a court order directing her to remove him from jail and to provide him with care and treatment in an appropriate facility, upon her general counsel being provided a copy of the court order on July 28, 2022. Respondent OPWDD had actual knowledge of the situation for the same reason. Furthermore, as there can be no question that the prolonged incarceration of a person with severe autism who lacks capacity to stand trial constitutes discrimination under the ADA, there is similarly no question that Respondents had actual knowledge that Petitioner's rights were being violated.

"91. Because OPWDD is the agency with statutory responsibility for removing individuals with developmental disabilities who lack capacity to stand trial from jail, Respondents had the authority to remove Petitioner from jail and to provide him with care and treatment in an appropriate facility—indeed, Respondents were subject to a court order directing them to accomplish exactly this. Respondents were capable of exercising this authority as soon as they were made aware of the 730 order, yet they failed to do so until this Court's order of August 26, 2022, when Respondents finally removed Petitioner from jail and initiated care and services simultaneously.

"92. Between July 27, 2022, and August 29, 2022, Respondents made a deliberate and calculated decision to leave Petitioner in jail and not to provide him with services in spite of a court order directing them to do the opposite. The undeniable fact that Respondents ultimately placed Petitioner within one business day of this Court directing them to do{**80 Misc 3d at 955} so is clear proof that Respondents had the ability to remove Petitioner from jail and provide him treatment, yet let him remain in a hostile setting without appropriate care or treatment.

"93. Respondents' action subsequent to this Court's order demonstrate that their previous failure to act went beyond negligence or bureaucratic inaction. Respondents affirmatively elected not to comply with the 730 order despite having the ability and resources to do so. This calculated decision resulted in Petitioner's prolonged incarceration, in violation of his federally protected rights.

"94. Based on the above, in failing to remove Petitioner from jail and provide him with care and treatment, Respondents acted with deliberate indifference to the strong likelihood that Petitioner's federally protected rights were being violated.

"95. The facts of this case did not present Respondents with a unique or unusual circumstance requiring any sort of special accommodation. Pursuant to CPL Art. 730, Respondents are notified of all individuals with developmental disabilities determined to lack capacity to stand trial and is responsible to remove all such individuals from jail and provide all such individuals with care and treatment in an appropriate facility.

"96. On information and belief, Respondents maintain a database which tracks the status and whereabouts of all individuals determined to lack capacity pursuant to CPL Art. 730.

"97. On information and belief, Respondents routinely make the calculated decision to leave individuals with developmental disabilities in jails despite the existence of judicial determinations that such individuals lack capacity, and court orders directing Respondents to remove such individuals from jail.

"98. On information and belief, Respondents have been leaving such individuals in county jails for many years as an alternative to expanding their capacity to provide care and treatment to individuals with developmental disabilities who have been adjudicated to lack capacity for trial.

"99. On information and belief, there are dozens of individuals currently placed at OPWDD's two{**80 Misc 3d at 956} developmental centers who have been approved for discharge to community based residential settings, but for whom OPWDD has failed to actually provide community placement. As such, Respondents' failure to promptly provide community placement to those individuals (itself a clear ADA violation) is an additional cause of Respondents' failure to promptly remove Petitioner from jail."

As and for a first claim for relief, the complaint alleges a violation of the Due Process Clause of the Fourteenth Amendment:

"101. Petitioner was incarcerated for 124 days total, including 33 days after Judge Caruso ordered Respondents to remove him from jail and provide him treatment.

"102. During this period Petitioner was unindicted and had been found to lack capacity to stand trial.

"103. As a direct result of his incarceration, Petitioner was completely deprived of his most fundamental liberties.

"104. Respondents had actual knowledge that Petitioner was incarcerated and that they had been ordered to remove him from jail and provide him treatment.

"105. Respondents were authorized and capable of removing Petitioner from jail and providing him treatment. Respondents operate two development centers and a network of hundreds of IRAs where they could have provided Petitioner with treatment outside of jail.

"106. Respondents made a deliberate and calculated decision not to remove Petitioner from jail or to provide him treatment.

"107. Respondents' failure to promptly remove Petitioner from jail and provide him with care and services in an appropriate placement violated the due process clause of the United States Constitution, U.S. Const. Amend. XIV, § 1."

Insofar as the first amended complaint purports to plead a stand-alone claim under the 14th Amendment, it does so in violation of the express directives of this court.

In its prior decision and order dated February 23, 2023, the court dismissed the 14th Amendment claim as moot, and authorized{**80 Misc 3d at 957} petitioner to file an amended complaint "limited in accordance with this decision, repleading a claim for monetary damages under title II of the Americans with Disabilities Act" (78 Misc 3d at 1074). By letter dated March 13, 2023, petitioner sought leave to revisit the court's determination of mootness and to replead his 14th Amendment claim. Respondent opposed the application, and the court declined to revisit on a letter application its holding that petitioner's claims for declaratory relief, including the 14th Amendment claim, are moot. The court by its law secretary further advised petitioner's counsel:

"Mr. Taylor, as you have observed, you must, to assert a claim for monetary damages under ADA Title II, plead and prove violations of both Title II and the 14th Amendment due process clause. In this context, the constitutional violation is an essential element of your claim for monetary damages, and may be pleaded accordingly."

In view of the foregoing, the stand-alone claim in the first amended complaint for a violation of the 14th Amendment Due Process Clause is dismissed. The allegations setting forth the constitutional claim (complaint ¶¶ 101-107) were repeated and realleged in petitioner's ADA title II claim (id. ¶ 108), which is fully consistent with the court's directive that the alleged 14th Amendment violation be pleaded as an element of the ADA claim. The dismissal notwithstanding, then, those allegations will be considered as part and parcel of the ADA title II claim.

Petitioner alleges a claim for monetary damages against the State of New York (i.e., against OPWDD Commissioner Neifeld sued in her official capacity) predicated upon an alleged violation of the ADA's "integration mandate," as follows:

"109. The ADA provides that, 'no qualified individual with a disability shall, by reason of such disability, be excluded from participating in or be denied the benefits of services, programs, or activities of a public entity.' 42 U.S.C. § 12132.

"110. OPWDD is a public entity covered by Title II of the ADA. Respondents are responsible for the operation of public entities covered by Title II of the ADA. 42 U.S.C. §§ 12131 (1)(A) and (B).

"111. Petitioner is an individual with a disability. He has mental impairments that substantially limit him in one or more major life activity.{**80 Misc 3d at 958}

"112. Petitioner is a qualified individual with a disability within the meaning of 42 U.S.C. § 12131 (2).

"113. Respondents' deliberate determination to leave Petitioner in jail, despite a court order directing them to remove him from jail and to provide him treatment, resulted in Petitioner spending 33 days in jail unnecessarily.

"114. Incarceration is more restrictive than an 'appropriate institution' that provides 'care and treatment.'

"115. Respondents are obligated under the ADA to administer New York State programs in a manner that enables Petitioner to receive services in the most integrated setting appropriate to his needs. 28 C.F.R. § 35.130 (d).

"116. By failing to provide Petitioner with care and treatment in an appropriate placement, and by determining instead to simply leave Petitioner in jail, Respondents have failed to meet this obligation.

"117. Given the existence of a court order directing Respondents to remove Petitioner from jail and provide him treatment, and the fact that Respondents operate two development centers and more than 100 community residences operated and certified by Respondents where Petitioner could have been brought for treatment, Petitioner's claim are eminently reasonable.

"118. Serving Petitioner in a more integrated setting would not fundamentally alter Respondents' programs.

"119. Respondents' failure to administer services, programs, and activities to Petitioner in the most integrated setting appropriate to his needs violates Title II of the ADA as interpreted by 28 C.F.R. §§ 35.130 (d) and 35.152 (b) (2)." (Emphasis added.)

As noted above, the complaint further asserts that "Respondent's failure to promptly remove Petitioner from jail and provide him with care and services in an appropriate placement violates the due process clause of the United States Constitution. U.S. Const. Amend. XIV, § 1" (¶ 107). Based on the foregoing, petitioner seeks an award of monetary damages pursuant to title II of the ADA.

Respondents move for dismissal on the ground that the complaint fails to state a claim under ADA title II's "integration {**80 Misc 3d at 959}mandate." On the prior motion for dismissal the court noted that it

"expresse[d] no opinion on whether the allegations of the petition regarding OPWDD's delay in transferring Matthew from the Putnam County Correctional Facility to one of its own facilities for care and treatment actually implicate the ADA title II 'integration mandate,' as that issue was not the focus of respondent's motion to dismiss" (78 Misc 3d at 1065 n 3).

That issue is squarely presented now.^[FN1]

A. Title II of the Americans with Disabilities Act

Title II of the Americans with Disabilities Act prohibits discrimination against individuals with disabilities in public services furnished by governmental entities. It provides:

"Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." (42 USC § 12132.)

To establish a claim under title II, a plaintiff must demonstrate "(1) that [he] is a qualified individual with a disability; (2) that [he] was excluded from participation in a public entity's services, programs or activities or was otherwise discriminated against by a public entity; and (3) that such exclusion or discrimination was due to [his] disability." (See Tardif v City of New York, 991 F3d 394, 404 [2d Cir 2021]; Davis v Shah, 821 F3d 231, 259 [2d Cir 2016].) The first two elements are satisfied here: the complaint alleges that Matthew is a qualified individual with a disability, and that he was excluded from participation in a public entity's services/programs—care and treatment in an OPWDD facility—by reason of OPWDD's delay in admitting him to its facility in compliance with the Justice Court's order. The question is whether the complaint satisfactorily alleges the third element, to wit, that Matthew's alleged "exclusion" from care and treatment at an OPWDD facility was "due to his disability."

{**80 Misc 3d at 960}In Henrietta D. v Bloomberg (331 F3d 261 [2d Cir 2003]), the Second Circuit observed that the ADA is addressed to "rules ... that hurt [people with disabilities] by reason of their handicap"; that "there must be something different about the way the plaintiff is treated 'by reason of ... disability' " (citing 42 USC § 12132); and that "[w]e have long recognized that the basic analytical framework of the ADA includes such a comparative component." (See id. at 276.) The court referenced Rodriguez v City of New York (197 F3d 611, 618 [2d Cir 1999] [declining to recognize discrimination where plaintiff requested a substantive benefit that was not provided to the nondisabled]) and Doe v Pfrommer (148 F3d 73, 83-84 [2d Cir 1998] ["(T)he central purpose of the ADA . . . is to assure that disabled individuals receive 'evenhanded treatment' in relation to the able-bodied. . . . (W)hat (plaintiff) ultimately seeks to challenge is not illegal discrimination against the disabled, but the substance of the services provided to him"]). More recently, in Tardif v City of New York (991 F3d 394 [2d Cir 2021], supra), the Second Circuit addressed the question "whether the alleged failure by the police to provide custodial medical services to Tardif [a detainee suffering from epilepsy] in a timely and adequate manner prior to her arraignment, by itself, constitutes a failure to make a reasonable accommodation 'by reason of' an individual's disability under the ADA." (Id. at 404.) The court held:

"In the complete absence of evidence that Tardif's epilepsy caused a deprivation of medical services, the fact that her disability was her motivation for seeking out such services does not suddenly transform her allegations regarding the inadequate medical treatment into a 'failure to accommodate' claim. . . . Instead, her claim relates solely to whether she received adequate medical treatment in police custody for her disability, and such a claim is not cognizable under the ADA." (Id. at 405.)

However, in its analysis of discrimination "by reason of disability" under the ADA, the Second Circuit in Henrietta D. also referenced Olmstead v L. C. (527 US 581 [1999]) and the "integration mandate" which is the foundation for petitioner's ADA title II claim. To that we now turn.

B. Olmstead and the "Integration Mandate"

In Olmstead, the Supreme Court held based on the ADA's "integration mandate" that the proscription of discrimination {**80 Misc 3d at 961}may require the placement of mentally disabled persons in community settings rather than institutions

"when the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental difficulties." (See id. at 587, 607.)

The ADA's "integration regulation" provides: "A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." (28 CFR 35.130 [d].) The Olmstead Court observed that "in findings applicable to the entire statute, Congress explicitly identified unjustified 'segregation' of persons with disabilities as a 'for[m] of discrimination.' " (Id. at 600 [emphasis added], citing 42 USC § 12101 [a] [2].) The Court accordingly rejected the State's contention that the petitioners had encountered no discrimination "by reason of [their] disability" within the meaning of 42 USC § 12132 because they were not denied community placement on account of the disability. (Id. at 598.) Thus, as the Second Circuit observed in Davis v Shah (821 F3d 231 [2d Cir 2016]), "Olmstead unquestionably holds that the 'unjustified institutional isolation of persons with disabilities' is, in an[d] of itself, a prohibited 'form of discrimination.' " (Id. at 260 [emphasis added].)

"Promulgated by the Department of Justice ('DOJ') pursuant to its enforcement powers under Title II of the ADA, the integration mandate provides that a public entity must 'administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.' 28 C.F.R. § 35.130(d). The 'most integrated setting appropriate' is the 'setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.' Olmstead, 527 U.S. at 592 . . .

"In Olmstead, the Supreme Court interpreted the integration mandate to mean that the 'unjustified isolation' of disabled individuals in institutionalized care facilities constitutes discrimination on the basis of disability under the ADA. 527 U.S. at 597 {**80 Misc 3d at 962}. . . As the Court observed, the 'unjustified institutional isolation' of disabled persons both 'perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life,' and 'severely diminishes [their] everyday life activities.' Id. at 600-01 . . . To avoid such damaging repercussions, the integration mandate thus requires a state to provide community-based treatment for disabled persons when (1) 'the State's treatment professionals determine that such placement is appropriate,' (2) 'the affected persons do not oppose such treatment,' and (3) 'the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with [similar] disabilities.' Id. at 607." (Davis v Shah, 821 F3d at 262 [emphasis added].)

In the wake of Olmstead, President George W. Bush issued Executive Order No. 13217 (66 Fed Reg 33155 [2001]), entitled "Community-Based Alternatives for Individuals With Disabilities." The executive order states in pertinent part:

"By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to place qualified individuals with disabilities in community settings whenever appropriate, it is hereby ordered as follows:

"Section 1. Policy. This order is issued consistent with the following findings and principles:

"(a) The United States is committed to community-based alternatives for individuals with disabilities and recognizes that such services advance the best interests of Americans.

"(b) The United States seeks to ensure that America's community-based programs effectively foster independence and participation in the community for Americans with disabilities.

"(c) Unjustified isolation or segregation of qualified individuals with disabilities through institutionalization is a form of disability-based discrimination prohibited by Title II of the Americans With Disabilities Act of 1990 (ADA) . . .

"(d) In [Olmstead], the Supreme Court construed Title II of the ADA to require States to place qualified individuals with mental disabilities in community{**80 Misc 3d at 963} settings, rather than in institutions, whenever treatment professionals determine that such placement is appropriate, the affected persons do not oppose such placement, and the State can reasonably accommodate the placement, taking into account the resources available to the State and the needs of others with disabilities.

"(e) The Federal Government must assist States and localities to implement swiftly the Olmstead decision, so as to help ensure that all Americans have the opportunity to live close to their families and friends, to live more independently, to engage in productive employment, and to participate in community life.

"Sec. 2. Swift Implementation of the Olmstead Decision: Agency Responsibilities. (a) The Attorney General [and other federal agencies] shall work cooperatively to ensure that the Olmstead decision is implemented in a timely manner. Specifically, the designated agencies should work with States to help them assess their compliance with the Olmstead decision and the ADA in providing services to qualified individuals with disabilities in community-based settings . . . ." (Emphasis added.)

C. The "integration mandate" is not implicated by the 33-day delay in transferring Matthew to the Sunmount Developmental Center for mental competency restorative treatment.

1. Case Law

There is a plethora of case law involving incarcerated detainees found incompetent to stand trial who, like Matthew, complain of delay in their transfer from jail to appropriate facilities for the provision of mental competency restorative treatment. Almost exclusively, their claims have been evaluated under the rubric of 14th Amendment substantive due process rights, grounded in a liberty interest in freedom from incarceration and timely restorative treatment. (See e.g. United States v Donnelly, 41 F4th 1102 [9th Cir 2022]; United States v Magassouba, 544 F3d 387 [2d Cir 2008]; Oregon Advocacy Ctr. v Mink, 322 F3d 1101 [9th Cir 2003]; Montana v Zapata, 2023 WL 2346055, 2023 US Dist LEXIS 36040 [D Mont, Mar. 3, 2023, CV-21-79-GF-BMM]; United States v Lee, 2022 WL 18275882, 2022 US Dist LEXIS 235469 [SD Fla, Dec. 27, 2022, case No. 1:21-CR-20034-Altonaga]; Indiana Protection & Advocacy Servs. Commn. v Indiana Family & Social Servs. Admin., 630{**80 Misc 3d at 964}F Supp 3d 1022 [SD Ind 2022]; United States v Brandreth-Gibbs, 2021 WL 764771, 2021 US Dist LEXIS 36780 [WD Wash, Feb. 26, 2021, case No. CR20-14 RSM]; United States v Jones, 2020 WL 7127321, 2020 US Dist LEXIS 228405 [D Mont, Dec. 4, 2020, CR 19-27-BU-DLC]; Powell v Maryland Dept. of Health, 455 Md 520, 168 A3d 857 [2017]; Disability Law Ctr. v Utah, 180 F Supp 3d 998 [D Utah 2016]; United States v Zapata-Herrera, 2015 WL 4878319, 2015 US Dist LEXIS 107444 [SD Cal, Aug. 14, 2015, No. 14-cr-3639-GPC]; Trueblood v Washington State Dept. of Social & Health Servs., 73 F Supp 3d 1311 [WD Wash 2014]; Lakey v Taylor, 435 SW3d 309 [Tex App 2014]; United States v Smith, 764 F Supp 2d 541 [WD NY 2011].) Although a person found incompetent to stand trial almost certainly constitutes a "qualified individual with a disability" within the meaning of 42 USC § 12131 (2),^[FN2] none of the petitioners in those cases alleged that delay in their transfer from jail to appropriate facilities for the provision of mental competency restorative treatment violated the ADA or its "integration mandate."

In Winters v Arkansas Dept. of Health & Human Servs. (491 F3d 933 [8th Cir 2007]), the Eighth Circuit squarely rejected a claim akin to that made by the petitioner here and held that a delay in transferring a mentally ill arrestee from jail to an appropriate facility for medical treatment does not implicate Olmstead and the ADA "integration mandate." (See id. at 936-937.) The court wrote:

"The district court rejected as inapplicable the plaintiff's argument based on [Olmstead] that Mr. Winters did not receive an appropriate placement under the ADA because jail is not the least restrictive placement for a person with a mental illness. The Olmstead case dealt with discrimination arising from isolating persons with mental illness in an institution when the state's own treatment professionals have determined that a community setting would be appropriate. See 527 U.S. at 602 . . . The district court properly distinguished the situation at hand, noting that Mr. Winters was awaiting transfer to the State Hospital for a decision about his appropriate placement, and the staff at Ozark had returned him to the custody of the{**80 Misc 3d at 965} Sheriff until there was an open bed at the State Hospital because no other treatment facility could take him. (He was still under an order requiring him to post bail on the trespass charge.) No treatment professionals had yet had the opportunity to evaluate him or recommend a placement for him and consequently, the least restrictive placement standard did not come into play . . .

"No party to this suit suggests that jail is an appropriate treatment facility for a mentally ill person. . . . Mr. Winters was not denied admittance to the State Hospital on the basis of his disability, but for a lack of available space. While a policy of same-day or immediate admission into an appropriate mental health facility may be desirable in the best of all worlds, it is not mandated by the ADA, the Rehabilitation Act, or the Constitution, and it may not always be feasible given a state's limited resources. We agree with the district court's conclusion that Mr. Winters was not discriminated against on the basis of his disability." (Winters, 491 F3d at 936-937.)

In M.S. v County of Ventura (2016 WL 11506613, 2016 US Dist LEXIS 195707 [CD Cal, Oct. 24, 2016, case No. CV 16-03084-BRO (RAOx)]), arrestees found incompetent to stand trial alleged that the denial of timely restorative treatment services violated the ADA. As in the case at bar, the arrestees were not admitted to a treatment facility immediately upon the court's order, and "thus, at least to some extent, [were] denied access to a public program or service." (See 2016 WL 11506613, *12, 2016 US Dist LEXIS 195707, *34-35.) Nevertheless, applying Winters, the court held that where the delay in admission occurred not because of the arrestees' disability but because the state hospital lacked space to receive them, there was no liability for discrimination under the ADA. (See id.) Although the court in Cooper v Kliebert (2016 WL 3892445, 2016 US Dist LEXIS 92917 [MD La, July 18, 2016, civil action Nos.: 14-507-SDD-EWD, 15-751-SDD-RLB]) found a facially valid ADA claim on similar facts, the court ignored Winters; indeed, the court's decision is wholly devoid of legal analysis, and therefore of little value. More instructive—on the issues of "unjust segregation" and ADA causation—is a subsequent decision from the same court in Summers v Louisiana (2022 WL 4490161, 2022 US Dist LEXIS 174446 [MD La, Sept. 27, 2022, civil action No. 20-21-JWD-SDJ]).{**80 Misc 3d at 966}

In Summers, plaintiffs with disabilities—including persons (i) acquitted by reason of insanity, (ii) found incompetent to stand trial, and (iii) detained pending trial—claimed that the Louisiana Department of Health and Hospitals (LDOH) violated the ADA by "warehousing" them in a forensic hospital setting (ELMHS) instead of providing community-based integration. (2022 WL 4490161, *22, 2022 US Dist LEXIS 174446, *60.) The foundation for their claim was that "such 'undue' or 'unjust' segregation violates the ADA's integration mandate." (2022 WL 4490161, *22, 2022 US Dist LEXIS 174446, *60-61.) The court observed that LDOH was not responsible for the plaintiffs' commitment to ELMHS and had no authority to release them into the community because their institutionalization and resulting segregation from the community was by virtue of a Louisiana state court order. (Id.) It held that unless and until the plaintiffs could allege facts showing that they met the requirements of state law for release into the community (or that their qualifying for release was imminent and not merely speculative), they failed to demonstrate standing to assert an Olmstead "integration mandate" claim against LDOH. (2022 WL 4490161, *23, 2022 US Dist LEXIS 174446, *63-66.)

Petitioner relies instead on Geness v Cox (902 F3d 344 [3d Cir 2018]). Concerning Mr. Geness's claim that "his prolonged detention, without a hearing, pending duplicative and futile psychiatric examinations" constituted discrimination "by reason of [mental] disability" under the ADA (id. at 359), the Geness court wrote:

"Regulations promulgated under the ADA require that the Commonwealth 'shall ensure that inmates or detainees with disabilities are housed in the most integrated setting appropriate to the needs of the individuals,' 28 C.F.R. § 35.152(b)(2) . . . and '[s]hall not place inmates or detainees with disabilities in inappropriate security classifications because no accessible cells or beds are available,' id. § 35.152(b)(2)(i). Pennsylvania's Mental Health Procedures Act also requires that '[w]henever a person who is detained on criminal charges or is incarcerated is made subject to inpatient examination or treatment, he shall be transferred, for this purpose, to a mental health facility,' and although the Act provides that a person accused of murder 'may be subject to court-ordered involuntary treatment,' {**80 Misc 3d at 967}it limits that to 'a period not to exceed one year[.]' Involuntary competency restoration treatment can only take place if it is 'reasonably certain that the involuntary treatment will provide the defendant with the capacity to stand trial.' These procedural protections are designed to avoid undue delays and safeguard the fair and efficient functioning of the criminal justice system, and the denial of those protections, leading to the 'unjustified instutional[ization] ... of persons with disabilities,' is 'a form of discrimination.' Olmstead v L. C. ex rel. Zimring, 527 U.S. 581, 600." (Geness v Cox, 902 F3d at 361-362 [some emphasis added; some citations omitted].)

Addressing the specific record before it, the Geness court continued:

"Geness was incarcerated for seven months before he was ordered to seek [involuntary competency restoration] treatment, was forced to wait three months more for that order to be carried out, and—notwithstanding that the competency evaluation declared him 'unable to recognize the role of personnel in the court system,' 'unable to recognize the different methods of trial,' 'unable to recognize various outcomes from his pending charges,' with a 'poor' prognosis for improvement—Geness was returned to prison for three years. He was then ordered to undergo another evaluation, forced to wait another year to receive it, and involuntarily committed for several more years—not only without 'reasonabl[e] certain[ty]' he would attain capacity but in the face of a second evaluation that had declared him 'not likely to respond to any additional treatment interventions.'

"As alleged, these multiple, protracted, and inexcusable delays in the handling of Geness's examinations, transfers, and motions—resulting in nearly a decade of imprisonment and civil commitment before a hearing was finally held on his habeas petition—are more than sufficient to state a claim under the ADA." (Id. at 362 [some emphasis added; citations omitted].)

Quite obviously, the facts of Geness—involving multiple protracted delays resulting in a decade's imprisonment and civil commitment—bear little relation to the 33 days' delay in{**80 Misc 3d at 968} transferring Matthew from the Putnam County Jail to OPWDD's Sunmount Developmental Center. Perhaps more importantly, though, Geness, like Summers, affirms that a claim under Olmstead and the ADA "integration mandate" exists only if the actions of the defendant have resulted in a disabled plaintiff's unjust institutionalization and segregation from the community.

2. Application

CPL 730.30 (1) provides:

"At any time after a defendant is arraigned upon an accusatory instrument other than a felony complaint and before the imposition of sentence, or at any time after a defendant is arraigned upon a felony complaint and before he is held for the action of the grand jury, the court wherein the criminal action is pending must issue an order of examination when it is of the opinion that the defendant may be an incapacitated person."

CPL 730.30 (3) further provides:

"When the examination reports submitted to the court show that each psychiatric examiner is of the opinion that the defendant is an incapacitated person, the court may, on its own motion, conduct a hearing to determine the issue of capacity and it must conduct such hearing upon motion therefor by the defendant or by the district attorney."

CPL 730.40 (1) provides in pertinent part:

"When a local criminal court, following a hearing conducted pursuant to subdivision three or four of section 730.30 of this article, is satisfied that the defendant is not an incapacitated person, the criminal action against him or her must proceed. If it is satisfied that the defendant is an incapacitated person, or if no motion for such a hearing is made, such court must issue a final or temporary order of observation committing him or her to the custody of the commissioner for care and treatment in an appropriate institution for a period not to exceed ninety days from the date of the order . . . . When a felony complaint has been filed against the defendant, such court must issue a temporary order of observation committing him or her to the custody of the commissioner for care and treatment in an appropriate institution or, upon the consent of the{**80 Misc 3d at 969} district attorney, committing him or her to the custody of the commissioner for care and treatment on an out-patient basis, for a period not to exceed ninety days from the date of such order."

The term "commissioner" means "the state commissioner of mental health or the state commissioner of the office for people with developmental disabilities." (CPL 730.10 [3].) The term "appropriate institution" means:

"(a) a hospital operated by the office of mental health or a developmental center operated by the office for people with developmental disabilities; or (b) a hospital licensed by the department of health which operates a psychiatric unit licensed by the office of mental health, as determined by the commissioner." (CPL 730.10 [9].)

In this case, the Honorable Michael V. Caruso, Patterson Town Justice, issued a "Temporary Order of Observation" dated July 27, 2022, which states:

"To: Sheriff of Putnam County

"Defendant, having been ordered pursuant to Section 730.30 of the Criminal Procedure Law, to submit to an examination to ascertain whether said defendant, as a result of mental disease or defect, lacks capacity to understand the proceedings against him or assist in his defense and is otherwise fit to proceed in the above-captioned prosecution.

"Defendant, having been duly examined by Alexis Gendell, Psy.D., report dated June 2, 2022 and Jerome Norton, Psy.D. MSCP, report dated July 6, 2022 and in accordance with the findings set forth in said examinations; and

"The Court, on July 20, 2022, having made a finding that the Defendant is unfit and lacks capacity, as a result of mental disease or defect, to understand the proceedings against him or to assist in his defense.

"Now, it is hereby Ordered that

"Pursuant to Section 730.40(1) of the Criminal Procedure Law, Defendant shall be committed to the custody of the Commissioner of the Office for Persons with Developmental Disabilities for care and treatment in an appropriate institution for a period not to exceed 90 days from the date of this Order." (Temp order of observation dated July 27, 2022.){**80 Misc 3d at 970}

Thus, Matthew was by order of the court pursuant to the Criminal Procedure Law committed to the custody of the Commissioner of the OPWDD, and hence subject to institutionalization and segregation from the community in the Sunmount Developmental Center no less than if he had remained in the custody of the Putnam County Sheriff.

The crux of petitioner's ADA claim—that "[i]ncarceration is more restrictive than an 'appropriate institution' that provides 'care and treatment' " (complaint ¶114)—is invalid for two reasons.

First, Matthew was not denied care and treatment "due to his disability." (See Tardif v City of New York; Davis v Shah; Henrietta D. v Bloomberg; Winters v Arkansas Dept. of Health & Human Servs.)

Second, "integration" for purposes of the Olmstead "integration mandate" is not defined in terms of the availability of care and treatment, but rather, in terms of community-based interaction with nondisabled persons. (See Olmstead v L.C.; Davis v Shah; Winters v Arkansas Dept. of Health & Human Servs.; Executive Order 13217.) As the Second Circuit observed in Davis v Shah:

• Olmstead held that the "unjustified institutional isolation of persons with disabilities" is a prohibited form of discrimination. (821 F3d at 260 [emphasis added].)

• "In Olmstead, the Supreme Court interpreted the integration mandate to mean that the 'unjustified isolation' of disabled individuals in institutionalized care facilities constitutes discrimination on the basis of disability under the ADA. 527 U.S. at 597." (Id. at 262 [emphasis added].)

• "[T]he integration mandate provides that a public entity must 'administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.' 28 C.F.R. § 35.130(d). The 'most integrated setting appropriate' is the 'setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.' Olmstead, 527 U.S. at 592." (Id. [emphasis added].)

• "As the [Olmstead] Court observed, the 'unjustified {**80 Misc 3d at 971}institutional isolation' of disabled persons both 'perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life,' and 'severely diminishes [their] everyday life activities.' Id. at 600-01 . . . To avoid such damaging repercussions, the integration mandate thus requires a state to provide community-based treatment for disabled persons when (1) 'the State's treatment professionals determine that such placement is appropriate.' " (Id. [emphasis added].)

The 33-day delay in transferring Matthew from the Putnam County Jail to the Sunmount Developmental Center simply does not implicate the "integration mandate" because, upon transfer, he would justifiably be isolated in an institutionalized care facility and deprived of interaction with nondisabled persons pursuant to the "Temporary Order of Observation" issued by the Justice Court pursuant to the Criminal Procedure Law. Evidently cognizant of this problem, petitioner further alleges that OPWDD had "100 community residences . . . where Petitioner could have been brought for treatment." (Complaint ¶ 117.) However, that allegation is inaccurate as a matter of law. The State's treatment professionals had not determined that community placement was appropriate for Matthew. (Cf. Olmstead.) Moreover, OPWDD lacked discretion to place Matthew in a community residence; it was required under the Criminal Procedure Law and the terms of the temporary order of observation to place him in the institutionalized care setting of one of its developmental centers. (See CPL 730.40 [1]; 730.10 [9]; temp order of observation dated July 27, 2022.) While the district attorney may pursuant to CPL 730.40 (1) consent to a temporary order of observation providing for care and treatment on an out-patient basis, that is wholly outside the purview of the OPWDD, which lacks standing to intervene in criminal proceedings. (See People v B.D., 79 Misc 3d 920 [Sup Ct, NY County 2023].) Therefore, despite its 33-day delay in transferring Matthew to the Sunmount Developmental Center, OPWDD did not cause his institutionalization and resulting segregation from the community and hence cannot be charged with any violation of the Olmstead "integration mandate." (See Summers v Louisiana.)

By reason of the foregoing, the first amended complaint fails to state a cause of action under title II of the Americans with{**80 Misc 3d at 972} Disabilities Act, wherefore the complaint must be dismissed. The court is also of the view that the petitioner has not alleged facts and circumstances demonstrating respondents' deliberate indifference to Matthew's federally protected rights, wherefore she is not entitled to monetary damages under ADA title II. (See Biondo v Kaledia Health, 935 F3d 68, 73 [2d Cir 2019]; Frank v Sachem Sch. Dist., 633 Fed Appx 14, 15 [2d Cir 2016]; Loeffler v Staten Is. Univ. Hosp., 582 F3d 268, 276 [2d Cir 2009]; Feltenstein v City of New Rochelle, 254 F Supp 3d 647, 657 [SD NY 2017].) However, the court does not reach that issue as the petitioner's failure to state a claim under ADA title II is dispositive.

It is therefore ordered that respondents' motion is granted, and the first amended complaint is hereby dismissed.