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October 19, 1982
ANIBAL SOBERAL-PEREZ, Plaintiff, and BENITO CORTEZ, Plaintiff-Intervenor, against RICHARD S. SCHWEIKER, Secretary of Health and Human Services, Defendant.
NEAHER, District Judge.
This is an action for declaratory and injunctive relief, monetary damages, and for review of certain final decisions of the Secretary of Health and Human Services (HHS). Plaintiff and plaintiff-intervenor (hereinafter "plaintiffs"), on behalf of themselves and all others similarly situated, challenge the Secretary's practices, policies and procedures in the disability insurance (DI) and the supplemental security income (SSI) programs administered by the Social Security Administration (SSA) as violative of the Social Security Act, 42 U.S.C. §§ 405(b) and 1383(c) (the Act),
the Civil Rights Act of 1964, 42 U.S.C. § 2000(d), and the Fifth Amendment Due Process Clause.
Specifically, the complaints challenge the sufficiency of the Spanish notices and Spanish-speaking personnel presently provided in the DI and SSI programs, claiming that the current SSA practice denies Hispanic
applicants and recipients equal access to and meaningful praticipation in the benefits programs.
The action is now before the Court on the following motions:
(1) Defendant's motion to dismiss certain allegations in the complaints under F.R.Civ.P. 12(b) or, in the alternative, for a protective order under F.R.Civ.P. 26(c);
(2) Plaintiffs' motion for class certification under F.R.Civ.P. 23(c); and
(3) Miguel Caraballo and Alcedo De La Cruz's motions for leave to intervene as plaintiffs in the action under F.R.Civ.P. 24(b).
For purposes of the government's motion to dismiss, the following facts are taken as true. Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).In 1947, plaintiff Anibal Soberal-Perez was born in Puerto Rico, and in 1965, after receiving a tenth grade education, he moved to the United States. His dominant language is Spanish, and he is unable to understand the English documents, instructions and advice, detailed below, which were provided him by SSA personnel. After several years of menial employment while suffering from respiratory and psychological impairments, Soberal-Perez applied concurrently for DI and SSI benefits. The initial determination was adverse to plaintiff, and he received written notice in English of his right to a reconsideration. Upon reconsideration, the initial determination was affirmed, and plaintiff received written notice in English of his right to a hearing before an administrative law judge (ALJ), to be represented by counsel, to present further evidence and to cross-examine adverse witnesses.
On April 19, 1977, Soberal-Perez went to his local SSA office in Brooklyn, New York, and handed an SSA employee the notice of reconsideration and a letter from his doctor. The employee filled out a request for hearing form, asking plaintiff questions which neither he nor his friend whom he had brought to act as translator understood. The employee checked certain boxes on the form adjacent to statements waiving plaintiff's rights to appear and submit further evidence and indicated to plaintiff that he should sign the form, which he did without understanding the nature or meaning of the statements. On July 3, 1977, an ALJ denied plaintiff's claims for benefits, and plaintiff received written notice in English of the grounds for denial and the right to appeal.
Subsequent to the Appeals Council affirmance of the ALJ's decision, this Court remanded the case to the Secretary for further proceedings. A supplemental hearing was held before an ALJ at which a translator was present and plaintiff was represented by his present counsel. By decision dated December 14, 1979, the Appeals Council adopted and partially modified the findings and conclusions of the ALJ, holding that plaintiff is entitled to neither DI nor SSI benefits.
Plaintiff-intervenor Benito Cortez, approximately 58 years old, presents similar circumstances: mininal education in his native Puerto Rico; insufficient ability to communicate in English to understand SSA procedures; menial employment in the United States; circulatory and osteoarthritic impairments; and denial of disability benefits with unknowing waiver of procedural rights. However, unlike Soberal-Perez, upon this Court's order of remand, and subsequent to a supplemental hearing with a translator present, Cortez" claims were allowed. In a decision dated August 29, 1980, the Appeals Council adopted the ALJ's decision, and pursuant thereto Cortez was placed in payment status with retroactive payments for the period beginning April 1977.
Movant Alcedo De La Cruz was born in the Dominican Republic in 1903. He too speaks primarily Spanish and is unable to understand the instructions and advice provided by SSA personnel.In August 1975, De La Cruz applied for SSA retirement benefits, and an application for SSI benefits was completed for him as well. He began receiving SSI benefits, and upon the advice of SSA personnel returned to work for a sufficient number of quarters to qualify for retirement benefits. By notice dated April 4, 1980, De La Cruz was informed that his earnings subsequent to August 1975 had not been properly included in his SSI computation, and that the overpayments would be recovered from his future checks. He requested a waiver of recovery of the overpayments by the SSA, based on his lack of understanding of the reporting requirements, bu the ALJ ruled, after a hearing at which a translater was present and plaintiff was represented by his present counsel, that he was at fault in causing the overpayments. When the Appeals Council denied plaintiff's request for review of the decision, the denial of his claim for waiver of recovery became a final decision of the Secretary.
Movant Miguel Carballo was born in 1928 and moved to the United States after receiving an eighth grade education in Puerto Rico. Carballo worked as a cook for 25 years prior to applying for SSI and DI benefits for disability stemming from severe diabetes and a diabetic coma suffered in 1968. After separate hearings, Carballo was denied DI benefits and found eligible for SSI benefits. On reapplication for DI, Carballo was provided a translator at the hearing, but his claim was again denied, and the Appeals Council affirmed the denial. Carballo failed to bring a civil action for review of the agency action within the jurisdictional 60-day period after the Secretary's final decision and now claims that his failure was due to the absence of Spanish notices or instructions regarding the right to appeal. By stipulation and order filed June 3, 1982, Carballo's claim was remanded to the Secretary for further proceedings.
The Government challenges plaintiffs' assertion that the Court has jurisdiction over the subject matter of this action under 28 U.S.C. § 1361, arguing that 42 U.S.C. § 405 affords the exclusive basis for jurisdiction over the claims presented.
The issue arises from the language of § 405(h), which appears to restrict review of any decision of the Secretary to the mechanism established by § 405(g).
Although the Supreme Court has provides support for broad construction of § 405(h), see, e.g., Califano v. Sanders, 430 U.S. 99, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977); Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976); Weinberger v. Salfi, 422 U.S. 749, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975), a plain reading of the statute, aided by the recent decision in Ellis v. Blum, 643 F.2d 68 (2d Cir. 1981), leads to the conclusion that § 1361 is an available jurisdictional basis in this action.
The third sentence of § 405(h) precludes actions "brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter."
Thus, to the extent the present claims seek to recover Social Security benefits, federal question jurisdiction is clearly foreclosed. The issue remains, however, whether the declaratory and injunctive relief sought by plaintiffs constitute claims "arising under" the Act.
In three instances the Supreme Court has expressly left open the question whether § 405(h) forecloses mandamus jurisdiction, Califano v. Yamasaki, 442 U.S. 682, 698, 61 L. Ed. 2d 176, 99 S. Ct. 2545 (1979); Norton v. Mathews, 427 U.S. 524, 529-30, 49 L. Ed. 2d 672, 96 S. Ct. 2771 (1976); Mathews v. Eldridge, supra, at 332 n.12, and in three cases the Court of Appeals for this Circuit has held that § 1361 jurisdiction will lie to review SSA benefits claims procedure, Ellis v. Blum, supra; Barnett v. Califano, 580 F.2d 28 (2d Cir. 1978); White v. Mathews, 559 F.2d 852 (2d Cir. 1977). Therefore, it is the scope and not the availability of mandamus jurisdiction which remains to be settled in this action.
The Secretary argues the inapplicability of § 1361 based on the discretionary nature of the governmental conduct sought to be compelled.
Yet, in the words of Professor Davis, it is only "mandamus medievalism" which prompts the restriction of § 1361 jurisdiction to those claims involving a "plain" right and a "ministerial" or "peremptory" duty. K. Davis, Administrative Law of the Seventies § 23.09, at 543-46 (1976). Nothing in the statute, which confers district court jurisdiction over "any action in the nature of mandamus," provides a basis for resurrecting ancient concepts attached to the common law writ which was abolished by Rule 81(b), F.R.Civ.P.
Rather, when read in light of the Administrative Procedure Act provisions governing judicial review of administrative action, 5 U.S.C. §§ 701-06, it becomes clear that the scope of § 1361 jurisdiction must be more flexible than the restrictions inhering in the mandamus writ.
The scope of review of all cases is established by 5 U.S.C. § 706:
"To the extent necessary to decision . . . the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and . . . shall . . . compel agency action unlawfully withheld . . . [and] set aside agency action found to be . . . an abuse of discretion, . . . contrary to constitutional right, . . . [or] without observance of procedure required by law."
As Professor Davis points out, since Congress did not except actions in the nature of mandamus from the scope of review prescribed by § 706, jurisdiction under § 1361 must extend to enable a federal court in appropriate circumstances to compel or set aside agency action without regard to the availability of mandamus relief at common law:
"Queer and unsatisfactory is the continued verbiage that the scope of review differs in actions in the nature of mandamus from the scope of review in other actions. The scope of review, whether or not mandatory relief is sought, and whether or not it is sought through an action in the nature of mandamus or through mandatory injunction, should be governed by the scope of review provisions of the Administrative Procedure Act." K. Davis, supra, at 543.
In sum, the primary flaw in the Secretary's argument lies in its advocacy of premature foreclosure of judicial inquiry: if § 1361 jurisdiction is limited to review of "ministerial" duties, the reviewing court cannot perform the above-quoted required functions under § 706.
In each of the three decisions in which the Second Circuit upheld mandamus jurisdiction notwithstanding § 405(h), in no sense could the Secretary's duty there under review be characterized as "peremptory" or "ministerial." Indeed, reasoned analysis reveals the folly of attempting to rigidly categorize the spectrum of governmental duties in such manner. In Barnett and White, the plaintiffs challenged the "glacial pace" of SSA adjusication of disability benefits claims. In Ellis, as previously discussed, the Secretary's authorization of certain forms of pretermination notice was at issue. In all three cases, the nature of the duty challenged did not preclude exercise of mandamus jurisdiction. It appears, then, that the law in this Circuit does not incorporate within § 1361 the common law mandamus requirement that the duty sought to be compelled must be ministerial or peremptory. Rather, when a constitutional duty is alleged, the court obtains a § 1361 jurisdiction, and it may compel compliance with such duty after determining its substance.
In Elliott v. Weinberger, 564 F.2d 1219 (9th Cir. 1977), aff'd in part, rev'd in part sub nom. Califano v. Yamasaki, 442 U.S. 682, 61 L. Ed. 2d 176, 99 S. Ct. 2545 (1979), the Court of Appeals for the Ninth Circuit noted that mandamus lies both to determine the constitutional requirements applicable to SSA procedure as well as to compel compliance with such requirements:
"In Knuckles v. Weinberger, 511 F.2d 1221 (9th Cir. 1975) and in Workman v. Mitchell, 502 F.2d 1201 (9th Cir. 1974), this Circuit has held that mandamus lies both to compel compliance with due process requirements and to provide the court jurisdiction "to declare the due process requirement applicable to [the challenged] proceedings." Workman, supra, at 1206.
"The fact that the district courts were required to analyze the Secretary's procedures in light of the fifth amendment in order to rule on the appropriate form of notice and hearing, does not render the Secretary's duty so unclear as to be beyound the reach of mandamus. "[O]nce the court interprets the law, the defendant's duty will be clear; the court is not telling the defendant how to exercise his discretion." Knuckles, supra, at 1222." 564 F.2d at 1226.
Examining the circumstances at hand, it is clear that § 1361 jurisdiction lies. Plaintiffs seek, in part, a declaration of the constitutional principles regarding the alleged class' right to receive bilingual notice of SSA determinations and review procedure. As the Court of Appeals stated in White, "the scope of the Secretary's discretion is the very issue before us." 559 F.2d at 856. Thus, we have jurisdiction under § 1361 to determine the existence of the constitutional duty and to review the agency action within the scope provided by the Administrative Procedure Act.
Arguing for dismissal of plaintiffs' claim for relief based upon § 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d,
the Secretary raises a novel issue: whether the statutory proscription against "discrimination under any program or activity receiving Federal financial assistance" is applicable to direct federal payment programs such as the DI and SSI programs. In the only relevant reported decision, Bob Jones University v. Johnson, 396 F. Supp. 597 (D.S.C. 1974), Aff'd mem., 529 F.2d 514 (4th Cir. 1975), the district court addressed the issue in one sentence of obiter dicturm:
"Admittedly, cash payments made by the federal government which may be utilized without restriction, and which are not dependent upon an individual beneficiary's participation in any program or activity (e.g., veterans' pensions; old-age survivors and disability benefits under Title II of the Social Security Act), are not within the coverage of Title VI because such payments would be assistance to the individual and not to a "program or activity" required by Section 601." 396 F. Supp. at 602 (footnote omitted).
Yet however brief the court's treatment in Bob Jones, its conclusion is supported by the statutory scheme and legislative history. Although the operative provision, "any program or activity receiving Federal financial assistance" does not unambiguously preclude application of § 2000d to direct programs, the enforcement mechanism established in § 2000d-1
clearly indicates that Title VI applies only where the federal government funds an intermediate non-federal recipient
who discriminates against an ultimate beneficiary. The language of the first sentence of § 2000d-1 is instructive:
"Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken."
In no uncertain terms, § 2000d-1 establishes the coverage of § 2000d. No mention is made of programs receiving direct budgetary funding through federal legislation. Rather, § 2000d-1 focuses only on federal entities which "extend" financial aid through "grant, loan, or contract." While in a sense the DI and SII programs receive financial "assistance" from the federal government, funding for these programs is provided not through loan, grant or contract, but through the social security payroll tax (DI) and appropriations from general revenues (SSI). S. Rep. No. 408, 96th Cong., 2d Sess. 11, reprinted in [1980] U.S. Code Cong. & Ad. News 1227, 1290. Thus, the clear qualifying language in § 2000d-1 leaves no doubt that the term "program" in § 2000d cannot refer to the DI and SSI programs, funded directly by Congress, but only to those programs receiving aid by grant, loan or contract from a federal department or agency.
Further, the third sentence of § 2000d-1 allows the disbursing federal agency to effect compliance with the substantive restriction in § 2000d by terminating or refusing to grant assistance. The clear import of this measure, as well as the proviso regarding procedure prior to terminating federal aid, see note 12, is enforcement of Title VI by federal agencies against non-federal entities. Congress made no provision for enforcement against direct federal benefit programs operating within federal departments or agencies.
Logic dictates that Congress would have developed an analogous enforcement mechanism to supplement the procedure outlined in § 2000d had it been concerned with federal agencies utilizing Title VI to police their internal direct benefits programs. Instead, the statute refers to only two alternative measures for effecting compliance: (1) "any other means authorized by law," which has been interpreted to include reference to the Department of Justice and any appropriate proceeding under local or State law, 45 C.F.R. § 80.8(a); and (2) informal attempts to secure compliance by voluntary means. 42 U.S.C. § 2000d-1. It need hardly be said that internal regulation of a department's direct benefits program would require a completely distinct perspective and procedural mechanism than that present in § 2000d-1. The legislative omission cannot be deemed insignificant.
For support of the view that Title VI has no application to direct programs of the federal government we need look no further than the remarks made by Senator Hubert Humphrey, one of the sponsors of the bill, on the Senate floor:
"It, therefore, is important to be quite clear as to just what title VI would and would not do. In terms, it applies to well over a hundred different Federal assistance programs. In fact, however, its effect will be much more limited.
"Perhaps the greatest amount of Federal assistance funds goes for direct programs, in which Federal funds are paid directly by the United States to the ultimate recipient, such as social security payments, veterans' compensation and pensions, civil service and railroad retirement benefits. Contrary to assertions that have been made, title VI will have no practical effect on such programs, for two reasons. First, the Federal Government does not engage in racial discrimination in determining eligibility for and paying out benefits under such programs. It could not. Neither the statutes aurthorizing them, nor the fifth amendment to the Constitution, would permit such discrimination. Second, title VI would not authorize the withholding of any of these direct payments on the ground that the recipient engages in racial discrimination in connection with his business or other activities. It is irrelevant, to the purpose of these acts, what the recipient does with the money he receives. His employees, the customers of his business, or other persons with whom he deals, are in no sense participants in or beneficiaries of these Federal programs." 110 Cong. Rec. 6544-45 (1964).
Although Senator Humphrey's explanation of the scope of Title VI lacks the clarity he intended and we might desire, the fundamentals appear sufficiently evident. For instance, the reference to "practical effects" leaves open nice distinctions between applicability and pragmatic impact of the law. Likewise, conclusory statements that the federal government "does not" and "could not" engage in discriminatory practices are far from helpful in the present circumstances. Yet, the Senator's remarks clearly establish the concept that the Social Security Act and the Fifth Amendment provide the necessary avenues for protection against discrimination by the SSA, rendering needless the application of the Civil Rights Act. Moreover, immediately following his discussion of the impact on direct programs, Senator Humphrey delineated the essential difference with regard to State welfare programs which receive federal grants under the Social Security Act: "[I]t [Title VI] will result in requirements that the State agenceis administering these programs refrain from racial discrimination in the allowance of benefits and the treatment of beneficiaries." Id. at 6545. Thus, in the critical exposition in the legislative debate on the scope of Title VI, a direct comparison was made between direct programs and federally assisted State programs.The express reference to the anti-discriminatory effect of the statute on State programs, in conjunction with the portrayal of its inapplicability to direct federal programs, ineluctably leads to the conclusion that the latter are excluded from the broad sweep of § 2000d. See also, 110 Cong. Rec. 6562, 8424-26, 13380 (1964).
Accordingly, dismissal of plaintiffs' claim based upon 42 U.S.C. § 2000d is appropriate.
Plaintiffs in this case assert a broad and fundamental attack on the constitutionality of monolingual governmental programs.
Essentially, plaintiffs' equal protection claim contends that the Constitution requires the State and federal governments to provide foreign language services whenever "a language barrier exists between a particular group and the particular [governmental] benefit sought, be it a cash benefit, job or other right." Memorandum for Plaintiffs at 36. They argue that failure to supply materials in the primary language of a governmental beneficiary, in this case Spanish forms and interpreters, constitutes discrimination on the basis of national origin. While this Court appreciates the difficulty recent immigrants may initially encounter with the English language, for the reasons stated below, we cannot say that the Constitution mandates a multilingual government.
The threshold determination in equal protection analysis is the governmental basis for the classification at issue. As the Supreme Court recently explained in Phyler v. Doe, its previous decisions have established essentially two tiers of equal protection review,
the application of which depends on whether the challenged classification either expressly or implicitly differentiated on grounds "inconsistent with elemental constitutional premises." 457 U.S. 202, 102 S. Ct. 2382, 2384, 72 L. Ed. 2d 786 (1982). A court must initially determine whether the classification "operates to the disadvantage of some suspect class or impinges upon a fundamental right." San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973). If so, the court must strictly scrutinize the governmental conduct, omitting application of the "usual presumption of validity"and requiring the government to come forward with compelling justification.If not, the classification must "be examined to determine whether it rationally furthers some legitimate, articulate [governmental] purpose and therefore does not constitute an invidious discrimination." Id.
Since the Supreme Court, in Weinberger v. Salfi, 422 U.S. 749, 772, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975), concluded that "a noncontractual claim to receive funds from the public treasury" does not enjoy the constitutionally protected status of fundamental rights such as the right to raise one's children, Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), or the right to personal choice in matters of family life, Cleveland Bd. of Ed. v. LaFleur, 414 U.S. 632, 39 L. Ed. 2d 52, 94 S. Ct. 791 (1974), the critical issue in this case is whether the current SSA practices operate to the disadvantage of a "suspect class." While there can be no question that Hispanic persons as an ethnic group constitutie such a class for equal protection purposes, Keyes v. School Dist. No. 1, 413 U.S. 189, 197, 37 L. Ed. 2d 548, 93 S. Ct. 2686 (1973), it is also clear that the SSI procedures alleged to be discriminatory are not on their face based upon ethnic orgin. Rather the allegedly discriminatory classification is based on language; that is, if a classificiation exists, it is not non-Hispanic/Hispanic, but English speaking/non-English speaking. While ethnic groups like Hispancis are often characterized by language, unlike race or natioanl origin, language, per se, is not a characteristic protected by the Constitution from rational differentiation. See, e.g., Frontera v. Sindell, 522 F.2d 1215, 1219 (6th Cir. 1975); Carmona v. Sheffield, 475 F.2d 738, 739 (9th Cir.1973). As the district court in Carmona aptly noted:
"The breadth and scope of such a [contrary] contention is so staggering as virtually to constitute its own refutation. If adopted in as cosmopolitan a society as ours, enriched as it has been by the immigration of persons from many lands with their distinctive linguistic and cultural heritages, it would virtually cause the processes of government to grind to a halt. The conduct of official business, including the proceedings and enactments of Congress, the Courts and administrative agencies, would become all but impossible. The application of Federal and State statutes, regulations and proceedings would be called into serious question." 325 F. Supp. at 1342.
Nevertheless, it is of course true that the SSI regulations, although neutral on their face, can constitute discrimination based upon race or national origin if the regulations have an intentionally disproportionate impact on a minority group. See, e.g., Arlington Heights v. Metropolitan Hous. Corp., 429 U.S. 252, 265-66, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977); Washington v. Davis, 426 U.S. 229, 241-42, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976); Keyes v. School Dist. No. 1, 413 U.S. at 201-03. Plaintiffs, however, do not allege that the Secretary promulgated SSI regulations with the intent to deprive Hispanics of governmental benefits. They argue instead that under several Second Circuit school desegregation decisions a "presumption of segregative purposes" arises when "the natural, probable and foreseeable result" of an agency action or inaction is a disproportionate adverse impact on a racial or ethnic minority group.Arthur v. Nyquist, 573 F.2d 134, 142-43 (2d Cir.), cert. denied sub nom. Manch v. Arthur, 439 U.S. 860, 58 L. Ed. 2d 169, 99 S. Ct. 179 (1978); Hart v. Community School Bd. of Ed., 512 F.2d 37, 51 (2d Cir. 1975). Although these cases indicate that foreseeability of disparate consequences is relevant on the issue of discriminatory intent, at least in school desegregation cases, Lora v. Board of Ed., 623 F.2d 248, 250 (2d Cir. 1980), foreseeability in itself is merely an inference and insufficient to demonstrate invidious discrimination. Personnel Admin. v. Feeney, 442 U.S. 256, 279 N.25, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979); Dayton Bd. of Ed. v. Brinkman, 443 U.S. 526, 527 n.9, 99 S. Ct. 2971, 61 L. Ed. 2d 720 (1979); Columbus Bd. of Ed. v. Penick, 443 U.S. 449, 464, 99 S. Ct. 2941, 61 L. Ed. 2d 666 (1979).
As the Supreme Court has defined it, discriminatory purpose "implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part "because of" not merely "in spite of," its adverse effects upon an identifiable group." Personnel Admin. v. Feeney, 442 U.S. at 279. The burden of proving, and hence alleging, this subjective element of discriminatory intent remains on the plaintiff. Lora v. Board of Ed., 623 F.2d at 251; see F.R.Civ.P. 9(b). In fact, the Court's decision in Feeney indicates that foreseeability of disproportionate impact, however great, fails to indicate an improper purpose when a believable and historical non-discriminatory explanation exists for the governmental procedures. Personnel Admin. v. Feeney, 442 U.S. at 281; see Bryan v. Koch, 492 F. Supp. 212, 219 (S.D.N.Y.), aff'd, 627 F.2d 612 (2c Cir. 1980).
In this case the valid historical basis and modern rationale for conducting governmental affairs in English is clear: the national language of the United States is English. As the Sixth Circuit noted in a case similar to this:
"Our laws are printed in English and our legislatures conduct their business in English. Some states even designate English as the official language of the state, e.g. 127 Ill. Rev. Stat.§ 177. Our national interest in English as the common language is exemplified by 8 U.S.C. § 1423, which requires, in general, English language literacy as a condition to naturalization as a United States citizen." Frontera v. Sindell, 522 F.2d at 1220.
The complaint therefore simply calls the Secretary to task for policies and practices that have objective rationality and historical justification.
Absent allegations or reasons other than a disproportionate impact, there is no basis to infer antipathy on the part of the Secretary.Consequently, the SSA procedures are not subject to strict scrutiny, id. at 1218; Carmona v. Sheffield, 475 F.2d at 739 (citing Dandridge v. Williams, 397 U.S. 471, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970)), and must be presumed racially and ethnically neutral.Personnel Admin. v. Feeney, 442 U.S. at 273; Vance v. Bradley, 440 U.S. at 97.
Once it is determined that a government action does not intentionally discriminate against a suspect class nor infringe the exercise of a fundamental right, the only question remaining is whether the legislative classification bears a rational relationship to a legitimate governmental purpose. Vance v. Bradley, 440 U.S. at 97. Given the universality of the English language in the affairs of government, it cannot be said that HHS procedures are irrational. The cost in time, money and administrative disruption are sufficient justifications under this tier of equal protection analysis. See Schweiker v. Wilson, 450 U.S. 221, 238, 67 L. Ed. 2d 186, 101 S. Ct. 1074 (1982) ("This Court has granted a "strong presumption of constitutionality" to legislation conferring monetary benefits, Mathews v. De Castro, 429 U.S. 181, 185, 50 L. Ed. 2d 389, 97 S. Ct. 431 (1976), because it believes that Congress should have discretion in deciding how to expend necessarily limited resources."). While plaintiffs may feel that auch a policy is unwise or inequitable, such belief "is of course an insufficient basis on which to conclude that it is unconstitutional." Schweiker v. Hogan, 457 U.S. 569, 102 S. Ct. 2597, 2609, 73 L. Ed. 2d 227 (1982). Such decisions must be made through the democratic process, no by order of a federal court. Vance v. Bradley, 440 U.S. at 97; Carmona v. Sheffield, 325 F. Supp. at 1344. Accordingly, plaintiffs' claims under the Fifth Amendment must be dismissed.
Plaintiffs' claims for procedural relief and compensatory damages having been dismissed, all that remains of this action is to review the final HHS decision denying plaintiff Soberal-Perez's claim for DI or SSI benefits. Consequently, there is no basis upon which to maintain a class action and that motion is denied.
Similarly, movant De La Cruz's application to intervene in this action no longer presents any claim or defense having "a question of law or fact in common" with the main action and must also be denied. F.R.Civ.P. 24(b). However, De La Cruz's complaint on its face states a claim for a review of the Secretary's final decision denying him a waiver of an overpayment made to him by HHS. In view of that separate controversy, De La Cruz's complaint shall be assigned a separate docket number and treated as originally filed November 9, 1981, the filing date of his notice of motion. However, since it also appears from the complaint and the administrative record that De La Cruz may have failed to comply with the 60-day jurisdictional time limit imposed by 42 U.S.C. § 405(g) and 20 C.F.R. § 422.210 (1981), De La Cruz will be required to show cause within 30 days from the date hereof why his complaint should not be dismissed for lack of jurisdiction.
Accordingly, the Clerk shall open a new civil case file and docket number for the Social Security disability claim of Alcedo De La Cruz, and the administrative record and related papers, if any, shall be transferred to that file.
As above indicated, the claims of plaintiffs Anibal Soberal-Perez and Benito Cortez for procedural relief and compensatory damages are in all respects denied.
The Clerk of Court is directed to forward copies of this Memorandum of Decision and Order to counsel for the parties.
JUDGMENT - October 20, 1982, Decided; October 21, 1982, Filed
A memorandum and order of Honorable Edward R. Neaher, United States District Judge, having been filed on October 19, 1982, denying plaintiffs' motion for class certification under F.R.Civ.P. 23(c), denying Miguel Caraballo and Alcedo De La Cruz's motions for leave to intervene as plaintiffs in the action under F.R.Civ.P. 24(b), and denying in all respects the claims of plaintiffs Anibal Soberal-Perez and Benito Cortez for procedural relief and compensatory damages, it is
ORDERED and ADJUDGED that plaintiffs take nothing of the defendant; that plaintiff's motions for class certification under F.R.Civ.P. 23(c) are denied; that the motions of Miguel Caraballo and Alcedo De La Cruz for leave to intervene as plaintiffs in the action under F.R.Civ.P. 24(b) are denied; and that the claims of plaintiffs Anibal Soberal-Perez and Beniot Cortez for procedural relief and compensatory damages are denied in all respects.
Dated: Brooklyn, New York
October 20, 1982
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Sheesh! If you missed either of the #ARTIIFACTTour dates, then we would like to extend our deepest condolences to you. But you know we got you. Peep this weekend's past happenings out at Durban's Wavehouse where we got to hang out with Dreamteam, DJ Capital and DJ Dimplez backstage as
Tag: anatii
Total 27 Posts
#ARTIIFACTTour supermega at the building @akaworldwide best performance of the Tour pic.twitter.com/r1jzoA76oz— Nelson Dlamini (@NelsonNkosie) September 30, 2016 #ARTIIFACTTour - #ARTIIFACT - "..I lost a lot of weight just to fit into @Balmain pic.twitter.com/TReecaCRXN— Nontobeko Sibisi (@Nontobek0Sibisi) September 30, 2016 Taking
The noise on Omarion's presence in South Africa for Anatii's ARTIIFACT Tour is increasing by the moment as the pair prepares to perform live for SA music fans in Jo'burg and Dubane. To increase the element of FOMO for the ARTIIFACT Tour, Cross Trainer and Anatii have partnered to bring
In part 2 of our chat with Anatii, we continue talking international connects but he opens us up to what he's really trying to do. Anatii's trying to be a pioneer for organic relationships between South Africans and international artists the world over by creating a culture of authentic collaboration
We take you back to 2014 when Anatii sent us into a frenzy over him working with our favourite music locksmith, DJ Khaled. We see them here rocking out to Bananaz, one of Anatii's international collabo singles. Fast forward to today, we caught up with him on the #BalconyInterview and
#BalconyInterview with @ANATII - He Talks His International Connects & How His Approach Is When Meeting Internationals
We had a chance to sit with Anatii on the #BalconyInterview and he talks to us about his international affiliations to how they became collaborations with the likes of Omarion, Tiwa Savage, DJ Khaled etc. If you've ever wondered where he gets the money to pay for all these collaborations
Anatii gives us the release for his debut album titled Artiifact. Its finally dropping on the 9th of September but ready to be pre ordered on this link: http://smarturl.it/ARTIIFACT Support the homie and show love.
Island, gorgeous women tings on Anatii's new song "Hours" taken from his upcoming album #Artifacts


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World heavyweight champion Tyson Fury allegedly tests positive for cocaine amid reports online. Fury had recently pulled out of his upcoming rematch with Wladimir Klitschko in Manchester due to being medically unfit to box. A recent interview with his uncle and trainer Peter Fury also revealed he has been suffering with mental health issues that he is now seeking help…
Tyson Fury Cocaine Joke From Tyson Fury Himself
The Tyson Fury cocaine allegations and reports have been made fun of and made light of by none other than the man himself today.
Yesterday it emerged from a report from ESPN that lineal heavyweight champion Tyson Fury had tested positive for cocaine in a recent drug test and could face the prospect of having some or all of his heavyweight titles stripped.
The news came at an already difficult time for Fury who was reported to be suffering with mental health issues and going through a tough time since winning his titles all the way back in November of 2015.
His official Twitter account today however has come out with a well, more light version of things it seems, as he had fun with the recent cocaine allegations against him:
#Tysonmontana pic.twitter.com/ccaTHpVuRY
— JOHN3:16. (@Tyson_Fury) October 1, 2016
The Tony Montana comparison from the famous mythical character played in hit movie 'Scarface' by Al Pacino is likely to cause some controversy, during an already controversial time for the heavyweight.
From a boxing perspective, it is not known what will come next until medical reports requested have been filed to the world governing bodies in light of his recent withdrawal from his rematch Wladimir Klitschko.
It is understood that Wladimir Klitschko is at present in talks to face Britain's IBF heavyweight title instead of facing Fury.
(Image source and credit: Tyson Fury Twitter)


text: going to /root in WinSCP, highlighting Apps-mach, selecting properties, 0755, and then hit "Set properties recursively" (meaning they make everything highlighted and in the next folder 0755)? cuz im doing it and it takes a VERY long time lol EDIT: DONT DO IT!!! it just got done and i had to restore my ipod lol


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Join host Scott Aukerman ("Comedy Bang! Bang!" on IFC, "Mr. Show") for a weekly podcast that blends conversation and character work from today's funniest comedians. While Scott begins by traditionally interviewing the celebrities, the open-door policy means an assortment of eccentric oddballs can pop by at any moment to chat, compete in games, and engage in comic revelry. With all that,andregular bonus episodes, we bet your favorite part will still be the plugs!
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September 15th, 2010
Episode 77 of 491 episodes
What a busy episode! Scott is joined by the ENTIRE cast of FX's "The League." That's right, both Paul Scheer AND Nick Kroll! Before Nick gets to the studio, El Chupacabra joins a particularly wheezy Scott to talk about his father, show off his impres...
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World Class Eco Gem - Waterfront Home - Window on the Natural World(34 Reviews)
The owner has been emailed.
To book this property, you need to complete your booking through checkout on the VRBO website. We can't protect your payment if we don't know you've booked through us. Learn more
- Minimum stay:3-4 nights
- Sleeps:4
- Bedrooms:2
- Bathrooms:2
- Property type:House
- Internet:Yes
- Pets considered:Yes
- Wheel chair accessible:N/A
About the Property
House, 2 Bedrooms + Other (See Description), 2 Baths, (Sleeps 4)
Plant & flower filled Atrium.
Large open kitchen with cherry wood, granite & Saltillo tile.
Spacious master suite with Cal King bed, whirlpool spa & shower.
Cozy gas fireplace. Immaculate throughout.
Outdoor deck with premier wildlife and bird viewing.
Did we mention TROPHY TROUT FISHING OFF THE DOCK?
Complimentary kayaks, canoes and fishing boat.
Located across from the Klamath Basin Birding Trail @ Putnam's Point #29.
We have many complimentary brochures.
Wi Fi. Resource library of art, history, geography & birding.
Minutes to South Portal Visitor Center on historic Main Street Downtown with restaurants & shopping. Walk Wingwatchers Trail. Go hiking or biking along the Link River Trail for premier birding. Public golf & swimming & Historic Interpretive Walks available.
Host to the BBC Natural History Unit filming the 'Dancing Grebes' for the 2010 'Life' Discovery Special , the NHK Team filming for Japanese Public Television Nature Series, National Geographic authors, birding experts and travel writers.
World famous Crater Lake National Park, Lava Beds National Monument and The Ashland Shakespeare Theater are a perfect half day excursion.
Keywords: Waterfront House, Private Dock, Fishing, Bird watching
When you're ready to book, here are some tips to keep in mind.
Paying with a credit card on VRBO protects your payment for up to $10,000 against listing fraud. We recommend completing your booking on VRBO.Learn more
+ 5418855450
Member since: 2008
Property Type
- House
Accommodation Type
- Vacation Rental
- Guests Provide Their Own Meals
- Long-Term Renters Welcome
- Children Welcome
Bedrooms: 2 Bedrooms, Sleeps 4, Beds for 4
Other Amenities
- Books
- CD Player
- DVD Player
- Satellite / Cable
- Adventure
- Away From It All
- Romantic
- Sports & Activities
- Cinemas
- Health/Beauty Spa
- Live Theater
- Museums
- Restaurants
Local Services & Businesses
- Fitness Center
Leisure Activities
- Antiquing
- Boating
- Shopping
- Sight Seeing
- Sledding
- Wildlife Viewing
Location Type
- Lakefront
Sports & Adventure Activities
- Cross Country Skiing
- Cycling
- Fishing
- Golf
- Hiking
- Hunting
- Kayaking
- Mountain Biking
- Racquetball
- Rafting
- Rock Climbing
- Sailing
- Skiing
- Snowboarding
- Snowmobiling
- Swimming
- Tennis
- Water Skiing
- Dining Area
- Seating for 6 people
- Air Conditioning:
- Clothes Dryer
- Garage:
- Gas Fireplace
- Hair Dryer
- Iron & Board
- Linens Provided
- Parking
- Parking Off Street:
- Parking For RV/Boat/Trailer
- Telephone
- Towels Provided
- Washing Machine
- Wireless Internet
- Coffee Maker
- Cooking Utensils
- Dishes & Utensils
- Microwave
- Refrigerator
- Stove
- Toaster
- Deck / Patio
- Lawn / Garden
- Outdoor Grill
Pool / Spa
- Jetted Tub
RatesCurrency Conversion
|Weekend Night
|Monthly *
Nov 1 - Jan 31, 2017
4 night min stay
My Standard Rate
3 night min stay
Additional information about rental rates
Fees and Rental Conditions:
- Cleaning Fee $125 + tax
- Pet Fee $10
- Property Damage Protection $59
- Tax Rate 8%
Check In is 4 PM & Check Out is 11 AM
Owner's cancellation policy:
50% refund for cancellations more than 14 days before check-in date.
100% refund for cancellations more than 30 days before check-in date.
Don't forget your vacation protection! Get protected now
Adding our Vacation Protection services can make sure your getaway goes smoothly, no matter what. We offer Cancellation Protection and Damage Protection so you can truly relax.
Owner info
About the owner: We have lived in the Klamath Basin since 1991. We have been actively involved in natural resource issues, construction and guide and outfitting. Most recently we finalized a 7 year project, 'Creating A Sense of Arrival' with the remodel of a Visitor Center for the City of Klamath Falls to showcase our beautiful downtown, trail system and waterfront area. This 'One Stop' location offers visitors and locals a place to get information about our area from the Chamber of Commerce and Discover Klamath. Other tenants include Klamath County Economic Development, the Hombuilders Association, Watershed Partnership and Ducks Unlimited. We are recipients of the City of Klamath Falls 'Green Pelican Award' and US Fish & Wildlife Wetlands Conservation Award.
Why the Owner Chose Klamath Falls, OR, USA:
We built our home in this very special location because it is on the waterfront and centrally located.
The Unique Benefits at this House:
This property is unique due to it's up close and personal all season watchable bird and wildlife, which can be viewed from the comfort of your living room or outdoors on the deck. Boating, birding and fishing are a just a few steps away. Downtown Klamath Falls is only 5 minutes and the airport a mere 15 minutes. If you like to hike or bike the Link River Trailhead can be seen from the living room. This Trail takes you to historic Main Street where you can enjoy lunch and visit a museum.
Contact us
Send email
- Primary: + 5418855450
Links to more information:
House exterior view
Beautiful Architecture with two story glass wall fronting Klamath Lake
Master Bedroom
Master Bath
Guest Bedroom
Pelicans Feeding
Baby Grebe June, 2012
Client with Redband Trout caught right off the dock!
NHK Film Crew On Location At Shoalwater Bay
Pelicans Feeding
Geranium Atrium
Cherry cabinets, granite counters and saltillo tile throughout kitchen.
Master Bedroom & Bath
Book Nook
Full Guest Bath
Last boat tour on Crater Lake Fall 2012
Birding & Boating At It's Best
What Me Worry?
Trophy Trout Fishing Right Off The Dock!
Summer fun.
Bald Eagles Perching In Our Tree!
This listing was first published here in 2008.
Date last modified - Wednesday, December 07, 2016
Partner Offers
Enter dates to see accurate pricing
Booking confirmation within 24 hours
Peace of mind when checking out through VRBO
- We'll back you with our Book With Confidence GuaranteeTM
- You'll get comprehensive payment protection when checking out on our website
- We're always here for you with customer service available 24/7
Read more about our Book with Confidence GuaranteeTM


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Bear Creek Hunting Preserve
Po Box 190 Autaugaville, Alabama 36003(334) 365-9277
Print | Save | Directions
AboutBear Creek Hunting Preserve is located at the address Po Box 190 in Autaugaville, Alabama 36003. They can be contacted via phone at (334) 365-9277 for pricing, hours and directions.
For more information contact Carol DeLoach, Owner
For maps and directions to Bear Creek Hunting Preserve view the map to the right. For reviews of Bear Creek Hunting Preserve see below.
You must Sign in to post reviews.
0 Reviews
Key Contacts
- Carol Deloach
- Phone: (334) 365-9277


text: I moved house recently and have lost the speaker cables which came with my Sony HTBE1 home cinema system. I'm currently trying to source replacements but finding it very difficult due to the male two pin connectors the speakers and sub require. The speaker connector is slightly smaller than the connector for the sub, but they are both the same type of connector. Does any one have any ideas where i could buy or source a set of speaker cables, or primarily just the speaker adaptors to fit the sony htbe1? I could then buy better quality wire than is supplied with this syetm. Any information would be greatly appreciated. I noticed you can buy the ones for the sony dream from monster in US but these only fit the amp and i am awaiting confirmation they post to UK. Kind regards, Bobby Bingo


text:
THIS IS A DIRECTORY PAGE. Britannica does not currently have an article on this topic.
Learn about this topic in these articles:
Indus civilization
...sites in Punjab, Banawali is an important major settlement, surrounded by massive brick defenses. One of the most surprising discoveries, far outside the central area of the Indus civilization, is Shortughai in the Amu Darya (Oxus River) valley, in northern Afghanistan. There the remains of a small Harappan colony, presumably sited so as to provide control of the lapis lazuli export trade...


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Hermann's Neue Post, Calw
- Free WiFi and free parking
Main amenities
- 9 apartments
- Garden
Feel at home
- Free cribs/infant beds
- Rollaway/extra beds (surcharge)
- Kitchen
- Private bathroom
- Garden
- Cable TV service
What's around
- Heart of Calw
- Nikolauskapelle (0 mi / 0 km)
- Palais Vischer (0.2 mi / 0.2 km)
- Rathaus (0.2 mi / 0.3 km)
- Georgenaum (0.2 mi / 0.3 km)
- Salzkasten (0.2 mi / 0.3 km)
Hermann's Neue Post, Calw
Hotel Info: 866-539-8117from $44
- Family Apartment
- Standard Apartment
- Double Room
- Single Room
- Apartment, 1 Bedroom
More great choices
At a glance
Key facts
Hotel size
- This hotel has 9 rooms
- Check-in time 3:00 PM-9:00 PM
- Check-out time is 11:00 AM
Required at check in
- Credit card or cash deposit required
- Government-issued photo ID required
Travelling with others
- Pets allowed (dogs only)
- Free WiFi in public areas
- Free WiFi in rooms
- Free self parking (limited)
Nearby Two Star Calw hotels
In the hotel
- Garden
In the room
- Private bathroom
- Shower only
- Hair dryer (on request)
- Cable TV channels
- Free WiFi
- Kitchen
Top Calw hotels
Recently reviewed hotels in Calw
- Hotel Empfinger HofFrom
"Pleasant experience staying at this hotel. Rooms are spacious and clean and quiet."Dec 2, 2016
- Hotel KroneFrom
"It was such an excellent time staying in the hotel during my Tubingen visit. The hotel locates at best place in the town. Also the concierge was very nice."Nov 30, 2016
- Hotel AzenbergFrom
"Amazing staff, very helpful. First-rate breakfast. Charming, cozy rooms. The location, down a narrow residential street, not close to trains, and very limited, tight parking are…"Nov 27, 2016
- Park Inn by Radisson StuttgartFrom
"25 minutes walking distance to Konig strasse. 2 minute walk to underground. no hotel parking just public parking under the hotel. 13 euros for 24 hours with multiple in and out.…"Nov 26, 2016
Nearby hotels
Also popular with travelers from the USA
Hermann's Neue Post, Calw's small print
Also known as
- Hermann's Neue Post
- Hermann's Neue Post Apartment
- Hermann's Neue Post Apartment Calw
- Hermann's Neue Post Calw
Optional extras
Parking is available nearby and costs EUR 1 per night
Rollaway beds are available for EUR 15 per night
We have included all charges provided to us by this hotel. However, charges can vary, for example, based on length of stay or the room you book.
Recent reviews
Excellent 4.3 /5 from 24 reviews
We had a very pleasant stay here in Calw and received a warm welcome, as well as anything else we needed. The staff was friendly and helpful and the room itself was beautiful and very comfortable. It's just across the street from the Nikolausbrücke and the gorgeous Calw Altstadt, where there's lots to see and eat and drink.
Wonderful experience! A historic building in a historical area , just a few hundred feet away from the bridge with the statue of Hermann Hesse and then a few hundred feet to the delightful, charming half timbered town of Calw. The apartment was a gem with apartment with full kitchen facilities and it's own outside spiral stairway from our balcony to the ground. Just lovely. And the owner operators are so so nice and accomodating; you are visiting friends not renting a room. A little difficult to find but well worth it. Lovely experience!
Is the description of this hotel not correct? Tell us


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Sunday, December 21, 2008
Sunday Before Christmas
It's hard to believe that we could have a whole weekend free before Christmas, but as it turned out, we did. Which is a blessing because our girls are tired. The end of year madness is wearing them out and Una has reverted to sleeping in the afternoons, either crashing out in the car or secretly nodding off on the couch in front of the television. The days she doesn't sleep we try and give her a mid afternoon bath, which is the happiest place in the world to Una and we've had enough rain that the tank allows for some non-essential washery.
Yesterday we drove up to Kinglake, the next town down the road. It's a hairy drive, a narrow country road with lots of deathwish bicyclists and motorbikes carrying what an old friend in Adelaide used to refer to as temporary citizens. In fact the day we took ownsership of this house we drove up there and very nearly got wiped out by an errant log truck (they're supposedly banned from using the road). Anyway, it's worth it, partly for the exhilaration of survival but mostly because Kinglake is beautiful with some awesome views of the city and a real sense of being out out out of the city. Anyway, yesterday we had a destination in mind - a raspberry farm where you can do all your own picking because in Australia Christmas isn't Christmas without fresh berries. The PYO rasberries are $15 a kilo, which still isn't especially cheap compared to the raspberry prices in Tasmania but is good for Victoria where punnets remain well over the $5 mark for most of the season (cherries are cheap and delicious though this year, Christmas isn't Christmas without cherries either).
The girls are great pickers. Una ate all the 'broken' ones and Fred, I think, ate every single one she picked, while Martin and I filled up our buckets. I sampled a few too. They are delicious.
We stopped at a nursery on the way home with a real country cafe - I had a cold meatloaf sandwich and a caramel slice, Martin had a ploughman's lunch with thick slices of cold corned beef, tomatoes, apple, various cheeses. The girls had herb scones with cheese - at one stage I remarked that I felt like we'd stumbled into an Enid Blyton novel. And then we had desserts too - caramel slice and lemon tarts and jelly and icecream for the girls. We bought some pink flowers and pineapple sage for my little flower patch near the fairy door (this photo makes me realise just how far the garden has come), and then spent the rest of the day outside. Martin massacared the last of the agapanthus - we rejoice in its demise - Fred played with the next-doors and Una cried intermittently till we put her in the bath. I walked down to the barrow on the main road and bought a few more plants for $1 each, dropping my coins into the honesty box.
For dinner fresh pesto, made with basil from the garden and olive oil from the olive grove down the road. Which Martin and I ate outside, driven out by Fred's bewildering new love for Spongebob Squarepants (yeah yeah, sometimes our kids eat dinner in front of the TV).
I have been meaning to blog for a while about our lives out here, more than one year on after the move from the inner city (and a life we loved) to the fringes of Melbourne, in the bush. I knew that life out here would offer something we couldn't get in the city, but largely I saw the benefits as being for the children - that they would be able to live with a freedom and wildness they wouldn't get in a small terrace house in the inner suburbs. The simple fact is - we're all happier than we ever thought we would be. I am often overwhelmed by love for this place, and though I miss the city, and though going into North Fitzroy (which broke up with us years ago) makes my heart crack all over again, every time I drive home, once I can see mountains and horses and paddocks and large tract of bush, my heart starts to sing again. I love it here, I really really do. Which Martin and I talked about as we ate our spaghetti last night, outside, under the gentle summer evening sky, overlooking our hard work - the clothesline Martin made (above), the rumpled dirt under the paperbark tree where agapanthus used to be, the veggie garden, the bank we shored up where the succulents are taking hold and sending out new green shoots, and before we went inside, we visited the fairy garden and admired the pink and silver and green.
By the way, the pesto was the best I've ever had. And for dessert? Raspberries of course.
thought up by me, Penni Russon at 7:20 PM


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(and don't miss out when there's giveaways, sales, and coupons...)
Give the gift of warm feet this holiday season. Check out Lowa's Seattle GTX, with a gortex lining this shoe will keep you warm all winter long. ... See MoreSee Less
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During the 1960's Alpine Sports in Ogden was one of largest Head Ski Dealers in the United States!
Here is Howard Head visiting Bob and Alpine Sports in 1966.
Bob Chambers 1930 -2016
Join us for a Memorial gathering at Alpine Sports Sunday, November 13, from 1pm - 5 pm #BeLikeBob ... See MoreSee Less
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Create your own ski legacy and be like Bob.
Join us this Sunday for his memorial, November 13th, from 1-5pm at Alpine Sports. Share your favorite story or memory of Bob (open mic at 2pm). #BeLikeBob ... See MoreSee Less
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Robert J. "Bob" Chambers (1930 - 2016)
Early Sunday morning, Bob Chambers began his last and final ski run. True to form, he was on the first chair up and didn't hesitate to tear off and make first tracks. But then he never was one to hesitate much.
Bob was born in Jackson Hole to early homesteaders, and grew up surrounded by stout & tireless ranchers & trappers. His family later moved to Ogden where he became a key member of the Ogden High School ski team, winning both the coveted Knudsen Cup and the 1948 State Championships.
Bob was an instructor for the U.S. Army's Mountain & Cold Weather Training Command at Camp Hale, CO, and was the All-Army Ski Champion. Later at the University of Wyoming, he was captain of the ski team, and won the NCAA 4-way Championship.
Bob returned to Ogden and founded Alpine Sports in 1955, which continues today as Utah's oldest family-owned ski shop. He proudly led Alpine Sports, serving generations of skiers, and gave countless teens their first real jobs. Bob was also a founding member of the Mt. Ogden Ski Club and was the founder & director of the All Air Force Championship Ski Races.
Bob was always eager to help those with challenges. He built ski outriggers for an amputee, taught a young girl with a prosthetic leg to ski, and helped found the first ski swap in northern Utah, and later turned it over to the Utah Handicapped Skiers Assn.
After 40 years he retired and resumed ski racing. He won more than 60 first-place finishes in Masters Racing. Bob's greatest honor was in 2002, as a torch-bearer for the Winter Olympics.
If your life has been touched by Bob, please join us in a memorial gathering, Sunday, Nov 13th, 1-5pm, at Alpine Sports. Come share your favorite story or memory of Bob (open mic at 2pm), but sorry, no returns on those boots he sold you back in 1978.
And to Bob, we wish you Godspeed on your final and greatest ski run of all. ... See MoreSee Less
4 weeks ago
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If you keep up with the Snowbasin Resort blog you might have seen a familiar face. But if you haven't check it out! www.snowbasin.com/blog/faces-of-snowbasin-jeff-montague ... See MoreSee Less
Faces of Snowbasin – Jeff Montague | Snowbasin
Next Faces of Snowbasin story features Jeff Montague a long time local who fell in love with skiing at a young age.
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Join us this Friday and Saturday at our 3rd annual Yard Sale. Stop by and check out our parking lot prices up to 70% off! ... See MoreSee Less
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Join us at Warren Miller Entertainment's Here, There & Everywhere the 25th thru the 27th at Perry's Egyptian Theater. This is going to be one Warren Miller movie you don't want to miss. ... See MoreSee Less
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Snowbasin Resort is hanging out with us today. Today at Alpine is the last day to purchase your learn to earn passes through Snowbasin. Save some gas and get your pass. ... See MoreSee Less
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We are open for the season! Mon-Fri 10AM-7PM and Saturday 10AM-6PM. We have new products arriving daily, come in and check it all out. ... See MoreSee Less
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Our favorite season is getting closer!! ... See MoreSee Less
At exactly 2 months to opening day, the first snow of the season has arrived! We are dreaming of powder days ahead in the not so distant future... Anyone else ready for winter!?
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Another Saturday is here and so is more new gear! Come see us as we are open Saturdays in September from 10am-6pm. ... See MoreSee Less
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Snowbasin Resort will be hanging out all day today at the shop. Swing on by and get your season pass printed and check out all the new gear! We are now open Saturdays in September from 10am-6pm! ... See MoreSee Less
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Don't forget to save big this weekend during our Labor Day Sale. Snowbasin Resort is also here all day Saturday printing season passes. ... See MoreSee Less
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The sale you've waited for all summer has finally arrived! Join us this weekend and get the best price on all your gear.
Thurs: 3-7 Fri: 3-7 Sat: 10-6 Sun: 12-6 Mon: 10-6 ... See MoreSee Less
3 months ago
Alpine Sports - Ogden, Utah, Colleen O'Donnell and 4 others like this
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3 months ago
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Alpine Sports - Ogden, Utah updated their cover photo. ... See MoreSee Less
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Celeb Snaps! Hottest Star Sightings: 12.19.12
Loraine Pavich
| December 19, 2012 - 7:11 pm
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$1,295,000 66 acres 5 Beds | 5 Baths | 5100 sqft 4359 FM697, Sherman, Texas 75090 - Grayson County
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The food was ok. Nothing special. They overcharged me for the coconut. Take care with the napkins they are not for free!
Really enjoyed Pho Saigon.
Came here on a recommendation from our hotel, did not expect anything as I didn't know that they were on trip advisor and by the outside, you don't really think it would be great, but was I ever impressed.
My wife & I both had a plate of fried noodles, she had with beef, and I...
Pho Sai Gon is set in the Fa Phim Market, just off Hai Ba Truong street. It is a classic noodle place, and if you are a beginner, this will suit you nicely. The local want more specialized stuff, but still the majority of the customers are Vietnamese. Get a pho bo tai and an ice tea for breakfast (drop...
Very blah, least remarkable pho we have had in Vietnam, a bit on the expensive side as well. Very disappointing considering the positive reviews.
Par for the course when it comes to Hue I suppose....
Just went here based on reviews and left incredibly dissatisfied. They start by bringing dumplings and towels, WHICH YOU HAVE TO PAY FOR, FYI. Yeah, the towels too. Then they brought our food. We ordered a banh bao and a beef and chicken noodle soup. The bao was tasty (the one redeeming quality) but the soup was fine and the...
Recommended by out hotel and it was just around the corner, we found it to be a great budget food stop.
Bad stuff first. Staff serving looked fed up and miserable.
Menus clear enough and prices are reasonable to very reasonable. We have eaten there on two occasions now and both Pho and duck noodles were fabulous. Dry noodles with...
Great food in a local eatery. Cheap and cheerful. Lots of choices with all the main Vietnamese dishes. Was recommend to us by our Vietnamese colleague and well worth the short walk
Saw the reviews so we went out of our way to go for dinner. We arrived and it seemed fairly busy, but nothing outrageous. The pho was average, was quite surprised so many said it was amazing. Maybe because we were farang, we only got mint and lettuce for our pho, when the tables next to us have serveral other...
When we visited Pho Sai Gon on the advisement of our hotel, we were very satisfied with the food. While the steamed dumplings, French fries and stir fried veg was good, the fried dumplings they placed on the table were great.
Like 16 more, great!
They are crispy on the outside and juicy on the inside and are pretty much...
We were advised of this restaurant by staff at our hotel. The pho was very good, the place left alot to be desired though. Perhaps its due to the fact we were the last customers of the evening, but the floor was filthy, the tables uncleaned. I dont know that its the best in Hue, but its definitely worth a...
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United States District Court, Second Circuit
April 5, 2013
GREGORY VINING, Plaintiff,v.DEPARTMENT OF CORRECTION, et al., Defendants.
J. PAUL OETKEN, District Judge.
This is a civil rights case brought by Plaintiff Gregory Vining against Defendants the City of New York, Dr. Mohammed Yazdonie, Police Officers Rosado and Mason, and a physician who works as a hand specialist in the West Facility at Riker's Island ("the Specialist") (collectively "Defendants"). Plaintiff alleges that Defendants violated the Eighth Amendment through their deliberate indifference to his need for medical treatment. Defendants have moved to dismiss the Complaint. For the reasons that follow, Defendants' motion is granted.
I. Standard of Review
On a motion to dismiss a complaint pursuant to Rule 12(b)(6), the Court accepts the complaint's factual allegations as true and draws inferences only in the plaintiff's favor. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). To survive a motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). " Pro se status does not... excuse a plaintiff from compliance with the pleading standards of the Federal Rules of Civil Procedure, " Jenkins v. New York City Dept. of Educ., No. 10 Civ. 6159, 2011 WL 5451711, at *3 (S.D.N.Y. Nov. 9, 2011) aff'd, 11-5306, 2013 WL 309982 (2d Cir. Jan. 28, 2013), though pro se complaints are read liberally and interpreted as raising the strongest arguments they suggest, see Erickson v. Pardus, 551 U.S. 89, 94 (2007).
II. Background
Plaintiff was arrested two days after a fist fight and, at the time of his arrest, told Officers Rosado and Mason that he thought his hand was broken-specifically, his "right two knuckles." In his opposition filing, Plaintiff explains that he had not gone to the hospital right away because he wanted to wait a few days post-injury to see if the swelling would go down. The arresting officers refused to take him to the hospital because that would cause a delay in seeing a judge. When Plaintiff arrived at Riker's Island on November 11, 2011, he was seen by Yazdonie. He said to Yazdonie "I think I broke my hand." Yazdonie told Plaintiff that he would be sent to the West Facility for x-rays. That did not occur for two weeks, at which point Plaintiff was informed that his right hand was broken in two places and promised a cast. He never received that cast. When Plaintiff was seen in the medical facility one month later, he was told by the Specialist that it was too late for a cast and that his hand had already healed. Plaintiff told the Specialist that his hand still hurt, so the Specialist sent him to Bellevue Hospital, where he was told that it was too late for a cast or any further treatment of that sort. Plaintiff's hand still hurts: "I can't make a tight fist or I can't straighten my hand out all the way [and] it's going [to affect me] for the rest of my life." Plaintiff notes in his opposition filing that someone at Bellevue "told [him he] should have been brought to the hospital a long time ago."
III. Discussion
A. Denial of Medical Treatment
Plaintiff does not indicate whether he is an inmate or pre-trial detainee. If he is an inmate, his denial of treatment claim is based on the Eighth Amendment; if he is a pre-trial detainee, it is based on the Fourteenth Amendment. See City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983). That distinction does not matter here, however, because "[c]laims for deliberate indifference to a... serious threat to the health or safety of a person in custody should be analyzed under the same standard irrespective of whether they are brought under the Eighth or Fourteenth Amendment." Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009). This standard originated in Eighth Amendment doctrine.
The Eighth Amendment to the U.S. Constitution commands that "cruel and unusual punishments [shall not be] inflicted." U.S. Const. amend. VIII. This rule, applicable to the states through the Fourteenth Amendment, see Estelle v. Gamble, 429 U.S. 97, 101-02 (1976), is violated by unnecessary and wanton inflictions of pain and suffering, see Whitley v. Albers, 475 U.S. 312, 320 (1986). Plaintiff alleges an Eighth Amendment violation due to the quality of his medical treatment. In 1976, the Supreme Court explained that "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment... whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle, 429 U.S. at 104-05 (quotation marks and internal citations omitted).
To state an Eighth Amendment claim, a prisoner must allege both (1) that he suffered a sufficiently, objectively serious deprivation and (2) that officials who caused the harm acted or failed to act with a sufficiently culpable state of mind, i.e., with deliberate indifference to inmate health or safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994).
The objective prong of this analysis requires an assessment of the allegedly cruel and unusual conditions. Although "the Constitution does not mandate comfortable prisons, " Rhodes v. Chapman, 452 U.S. 337, 349 (1981), prisoners may not be deprived of "basic human needs- e.g., food, clothing, shelter, medical care, and reasonable safety, " Helling v. McKinney, 509 U.S. 25, 32 (1993) (quoting Estelle, 429 U.S. at 103-104). "Nor may prison officials expose prisoners to conditions that pose an unreasonable risk of serious damage to [their] future health.'" Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (quoting Helling, 509 U.S. at 35). "Ultimately, to establish the objective element of an Eighth Amendment claim, a prisoner must prove that the conditions of his confinement violate contemporary standards of decency." Id. (citations omitted); see also Carr v. Canty, No. 10 Civ. 3829, 2012 WL 3578742, at *3 (S.D.N.Y. Aug. 16, 2012) ("[T]o establish the deprivation of a basic human need such as reasonable safety, an inmate must show actual or imminent harm." (quotation marks and citations omitted)).
"To establish the second element, deliberate indifference, a plaintiff must show something more than mere negligence...." Id. (internal quotation marks and citation omitted). Therefore, an official cannot be found liable for an Eighth Amendment violation "unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. The Second Circuit has noted that "[t]his deliberate indifference element is equivalent to the familiar standard of recklessness as used in criminal law." Phelps, 308 F.3d at 186 (quotation marks omitted). "Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, ... and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Farmer, 511 U.S. at 842.
Although this standard does not change, "the presence of a medical treatment issue calls upon the Court to assess with particularity the nature and quality of the medical deprivation that Plaintiff endured." Walker v. Schriro, No. 11 Civ. 9299, 2013 WL 1234930, at *13 (S.D.N.Y. Mar. 26, 2013); see also Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003) ("Because [t]he objective component of an Eighth Amendment claim is... [necessarily] contextual and fact-specific, the serious medical need inquiry must be tailored to the specific circumstances of each case." (citations omitted)). As the Second Circuit has explained,
if the unreasonable medical care is a failure to provide any treatment for an inmate's medical condition, courts examine whether the inmate's medical condition is sufficiently serious. Factors relevant to the seriousness of a medical condition include whether a reasonable doctor or patient would find [it] important and worthy of comment, whether the condition significantly affects an individual's daily activities, and whether it causes chronic and substantial pain.
Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) (interal quotation marks and citations omitted) (alteration in the original). While this standard most certainly includes "condition[s] of urgency that may produce death, degeneration, or extreme pain, " Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (quotation marks and citation omitted), it has also been interpreted to include "less serious denials [of medical attention] which cause or perpetuate pain, " Brock v. Wright, 315 F.3d 158, 163 (2d Cir. 2003) (citation omitted). Courts "will no more tolerate prison officials' deliberate indifference to the chronic pain of an inmate than we would a sentence that required the inmate to submit to such pain." Id. Accordingly, when presented with denial of medical treatment claims, courts do not "require an inmate to demonstrate that he or she experiences pain that is at the limit of human ability to bear, nor do [they] require a showing that his or her condition will degenerate into a life-threatening one." See id. (disagreeing with district court determination that chronic pain somewhere between annoying' and extreme' could not suffice to support a denial of treatment violation under the Eighth Amendment).
Of course, it is well established that not every claim made by a prisoner that he has received inadequate medical treatment states a violation of the Eighth Amendment; neither negligence nor medical malpractice is sufficient. See Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003). To the contrary, a plaintiff must show conduct that is "repugnant to the conscience" or "incompatible with the evolving standards of decency that mark the progress of a maturing society." Estelle, 429 U.S. at 102, 105 (citations omitted).[1]
Defendants' first argument is that Plaintiff fails to allege an objectively serious, sufficient deprivation of his constitutional rights. In support of this position, Defendants rely exclusively on a string of cases addressing lacerated or broken fingers. See, e.g., Sonds v. St. Barnabas Hosp. Corr. Health Services, 151 F.Supp.2d 303, 311 (S.D.N.Y. 2001) ("A bleeding finger does not pose a substantial risk of serious harm. Case law holds that the objective prong of the deliberate indifference test is not satisfied even where a finger is broken."); Henderson v. Doe, No. 98 Civ. 5011, 1999 WL 378333, at *1 (S.D.N.Y. June 10, 1999) (rejecting Eighth Amendment claim based on injury to "[a] pinky finger suffered while plaintiff was playing basketball with other inmates on Riker's Island"); Rivera v. Johnson, No. 95 Civ. 845, 1996 WL 549336, at *2 (W.D.N.Y. Sept. 20, 1996) ("A broken finger, without more, simply does not present a condition of urgency of the type that... merits constitutional protection."). These cases are inapposite, notwithstanding Defendants' assertion that they are relevant because "[t]he knuckle is where the metacarpal bone of the hand meets the phalanges bone of the finger."
Indeed, numerous courts have found objectively serious injury in cases involving injury to the hand, including broken bones. See, e.g., Lepper v. Nguyen, 368 F.Appx. 35, 39 (11th Cir. 2010); Andrews v. Hanks, 50 Fed.Appx. 766, 769 (7th Cir. 2002); Bryan v. Endell, 141 F.3d 1290, 1291 (8th Cir. 1998); Beaman v. Unger, 838 F.Supp.2d 108, 110 (W.D.N.Y. 2011); Thompson v. Shutt, No. 09 Civ. 1585, 2010 WL 4366107, at *4 (E.D. Cal. Oct. 27, 2010); Mantigal v. Cate, 10 Civ. 1503, 2010 WL 3365735, at *6 (C.D. Cal. May 24, 2010) report and recommendation adopted, 10 Civ. 1503, 2010 WL 3365383 (C.D. Cal. Aug. 24, 2010); Johnson v. Adams, No. 9 Civ. 2, 2010 WL 1407787, at *4 (E.D. Ark. Mar. 8, 2010) report and recommendation adopted, No. 9 Civ. 2, 2010 WL 1407790 (E.D. Ark. Mar. 31, 2010); Bragg v. Tyler, No. 7 Civ. 4194, 2007 WL 2915098, at *5 (D.N.J. Oct. 4, 2007).
This makes sense. The factors that determine whether a prisoner's medical condition is serious include: "1) whether a reasonable doctor or patient would perceive the medical need in question as important and worthy of comment or treatment, 2) whether the medical condition significantly affects daily activities, and 3) the existence of chronic and substantial pain." Brock, 315 F.3d at 162-63. Here, at least two physicians deemed Plaintiff's injury worthy of comment and treatment, any patient would presumably view a broken hand as a serious condition, a permanent impairment in the use of one's right hand has the potential to significantly affect daily activities, and Plaintiff reports an experience of chronic pain. In his opposition filing, Plaintiff explains how the injury continues to affect him:
An old timer told me a long time ago the worst thing you can do is get a toothache in jail because you will be in pain for weeks before they get you to the dentist. I don't only feel, but I know for a fact that any broken bone is urgent because now I can't make a fist, I can't straighten my hand out all the way, I can't even grip stuff like I used to. Sometimes when I sleep on my hand by accident, I wake up in pain, sometimes when it rains by hand starts aching.
While the medical details will vary from case to case, and bright line rules are few and far between in the Eighth Amendment context, the Court concludes that Plaintiff's broken hand satisfies the requirement of an objectively serious injury. Just as this Court has explained that "[m]obility is fundamental to our continued health, " Giambalvo v. Sommer, 10 Civ. 6774, 2012 WL 4471532, at *5 (S.D.N.Y. Sept. 19, 2012), and cautioned that "the Eighth Amendment [does not] abide[] the wanton infliction of months of extreme' pain through the allegedly arbitrary denial of medically authorized footwear by prison guards, " Walker, 2013 WL 1234930, at *14, so too does the Court recognize that use of one's hand is essential to effective functioning in the world and that chronic pain arising from inadequate medical treatment of a severe hand injury may qualify as objectively serious. After all, it is hard to imagine that any court would knowingly impose a "sentence that required the inmate to submit to such pain." Brock, 315 F.3d at 163. In short, a broken hand is not the same as a broken finger. Application of settled Second Circuit doctrine points toward the conclusion that chronic pain arising from serious hand injuries satisfies the objective prong of Eighth Amendment deliberate indifference analysis.
Defendants nonetheless prevail, however, because of their second argument, which assails the adequacy of Plaintiff's allegations regarding subjective intent. The critical issue is whether any of the defendants in this case acted recklessly-in other words, whether any of them knew of and nonetheless disregarded an excessive risk to Plaintiff's health.
Plaintiff alleges that Officers Rosado and Mason knew of his hand injury, but nonetheless took him to court rather than a hospital. His claims against them cannot succeed because these officers, presented with Plaintiff's claim of a broken hand, would not have been expected to view this injury as of a sort that required immediate medical attention. When a plaintiff alleges deliberate indifference to the need for medical treatment, the critical question with respect to an arresting officer's subjective intent is whether the injury would have appeared "urgent" to the officer and, if so, whether the officer either denied medical care entirely or "deliberately ignored that need [for medical care] for an unreasonable period of time." Morgan v. County of Nassau, 720 F.Supp.2d 229, 239 (E.D.N.Y. 2010). Because Plaintiff's injury would not have appeared urgent, unlike cases where a plaintiff was discovered unconscious on the ground, see, e.g., id., or where a plaintiff was known to have ingested a dangerous amount of alcohol or drugs, see, e.g., Bradway v. Town of Southampton, 826 F.Supp.2d 458, 471 (E.D.N.Y. 2011), the officers did not act recklessly in refusing to seek immediate medical care.
Plaintiff does not allege any culpable mental state, such as recklessness or malice, on the part of Yazdonie or the Specialist. Nor does Plaintiff allege that Yazdonie or the Specialist either intended or engineered the multi-week delays that prevented timely and proper care for his injury. The Complaint and Plaintiff's opposition filing suggest that the Specialist had limited availability, and that timely and effective care for Plaintiff's injury fell victim to the impersonal dynamic of prison medical logistics. Thus, unlike most denial of treatment cases, this dispute is not based on a "difference of opinion between a prisoner and prison officials regarding medical treatment" or an effort by Plaintiff to "second guess medical judgments." Sonds v. St. Barnabas Hosp. Corr. Health Services, 151 F.Supp.2d 303, 311 (S.D.N.Y. 2001). Nor do Plaintiff and Defendants appear to disagree over "the need for specialists or the timing of their intervention." Id. at 312. Rather, Plaintiff's claim flows from scheduling errors and ultimately inadequate advocacy by Yazdonie on behalf of his client's medical needs. That state of affairs is unfortunate, but absent a showing of recklessness on the part of a particular actor, Plaintiff's claim cannot succeed. At most, Plaintiff's allegations indicate that Yazdonie and the Specialist were negligent in failing to schedule prompt follow-ups. See Hernandez v. Keane, 341 F.3d 137, 145-46 (2d Cir. 2003) ("The evidence as to the treatment of plaintiff's hand suggests at most several acts of negligence over a prolonged period."); Beaman, 838 F.Supp.2d at 110 ("The most that [the plaintiff's] allegations show, however, is that the two nurses and Dr. Shiekh misdiagnosed his injuries, and failed to recognize the severity of those injuries. Such allegations might conceivably show malpractice, but they do not state an Eighth Amendment claim." (citations omitted)). Negligence, however, "is not enough to support an Eighth Amendment violation." Hernandez, 341 F.3d at 146. Accordingly, Plaintiff's claims against Yazdonie and the Specialist must be dismissed.
B. Claims Against Defendant New York City
To establish a § 1983 claim against a municipality, a plaintiff must show that the officials who deprived him of a constitutional right acted pursuant to an official municipal policy or custom. Monell v. Dep't of Social Services, 436 U.S. 658, 690-91 (1978); see Reynolds v. Guliani, 506 F.3d 183, 190-91 (2d Cir. 2007). Here, Plaintiff has failed to allege that any prison official acted pursuant to a municipal policy or custom. Plaintiff has also failed to allege any facts from which a court could reasonably infer that a relevant policy or custom existed, and that it contributed to Plaintiff's injuries. Instead, Plaintiff has alleged only isolated episodes of deliberate indifference to his need for medical treatment by his arresting officers and by medical providers at Riker's Island. Thus, Plaintiff's municipal liability claim must be dismissed.
IV. Conclusion
For the foregoing reasons, Defendants' motion to dismiss is GRANTED.
The Clerk of Court is directed to close the motion at Dkt. No. 12 and to close this case.
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