Case: Disability Rights New York v. Northern Rivers

Disability Rights New York v. Northern Rivers Family Services

Disability Rights New York v. Northern Rivers Family Services

Disability Rights New York v. Northern Rivers Family Services

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against John Henley, Northeast Parent and Child Society, Northern Rivers Family Services, Inc. (Filing fee $400 receipt number 0206-3576455) filed by Disability Rights New York. (Attachment: # 1 Civil Cover Sheet)(lah) (Entered: 02/18/2016)

1 Civil Cover Sheet

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Summons Issued as to John Henley, Northeast Parent and Child Society, Northern Rivers Family Services, Inc. (Attachments: # 1 John Henley, # 2 Northeast Parent and Child Society)(lah) (Entered: 02/18/2016)

G.O. 25 FILING ORDER ISSUED: Initial Conference set for 5/18/2016 at 9:00 AM in Albany before Magistrate Judge Christian F. Hummel. Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 5/11/2016. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (lah) (Entered: 02/18/2016)

Ex Parte MOTION for Preliminary Injunction Motion Hearing set for 3/25/2016 10:00 AM in Syracuse before Chief Judge Glenn T. Suddaby Response to Motion due by 3/8/2016 Reply to Response to Motion due by 3/14/2016. filed by Disability Rights New York. (Attachments: # 1 Affidavit, # 2 Proposed Order/Judgment, # 3 Affidavit, # 4 Affidavit, # 5 Memorandum of Law, # 6 Exhibit(s), # 7 Exhibit(s), # 8 Exhibit(s), # 9 Exhibit(s), # 10 Exhibit(s), # 11 Exhibit(s), # 12 Exhibit(s)) (Gadomski, Michael) (Entered: 02/18/2016)

1 Affidavit

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2 Proposed Order/Judgment

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3 Affidavit

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4 Affidavit

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5 Memorandum of Law

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6 Exhibit(s)

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7 Exhibit(s)

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8 Exhibit(s)

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9 Exhibit(s)

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10 Exhibit(s)

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11 Exhibit(s)

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12 Exhibit(s)

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TEXT ORDER denying #4 Plaintiff's application for an Order to Show Cause. Plaintiff has not established the requirement for the issuance of an Order to Show Cause under Local Rules 7.1(e). More specifically, Plaintiff has not submitted an affidavit clearly and specifically showing good and sufficient cause why the standard Notice of Motion procedure cannot be used with regard to its Motion for a Preliminary Injunction. N.D.N.Y. L.R. 7.1(e). Nor has Plaintiff even demonstrate[d], in a detailed and specific affidavit, good cause and substantial prejudice that would result from requiring Plaintiff to give Defendants reasonable advanced notice of its application for an Order to Show Cause. N.D.N.Y. L.R. 7.1(e). Rather, Plaintiff has submitted the "affidavit" of its counsel. (Dkt. No. 4, Attach. 1.) As an initial matter, the "affidavit" is neither notarized nor verified pursuant to 28 U.S.C. § 1746. (Id.) Moreover, generally, counsel are not competent to testify as to the prejudice his or her client would suffer from having to give an opponent reasonable advanced notice of an application for an Order to Show Cause. Road Dawgs Motorcycle Club of the U.S., Inc. v. Cuse Road Dawgs, Inc., 679 F. Supp.2d 259, 281-82 & n.54 (N.D.N.Y. 2009). In any event, the "affidavit" does not address the urgency of injunctive relief or difficulty of regular service, but merely the merits of the request for injunctive relief. Indeed, it acknowledges that Plaintiff's clients are "former residents of defendants' facility." (Dkt. No. 4, Attach. 1, 4 [emphasis added].) The declaration of Plaintiff's client, proffered in support of its motion for a preliminary injunction, does not cure these defects. (Dkt. No. 4, Attach. 3.) Decision is reserved on Plaintiffs motion for a preliminary injunction. Plaintiff shall serve on Defendants a copy of its Complaint, its motion for a preliminary injunction, and this Text Order, and promptly thereafter file a Certificate of Service with the Court. Defendants shall file with this Court, and serve on Plaintiff's counsel, their response to Plaintiffs motion for a preliminary injunction within FOURTEEN (14) DAYS of the aforementioned service. A hearing on Plaintiff's motion shall occur before the undersigned in the Federal Building in Syracuse, New York, at a date and time to be determined next week. Authorized by Chief Judge Glenn T. Suddaby on 2/19/16.(kee) (Entered: 02/19/2016)

Order on Motion for Preliminary Injunction

TEXT ORDER: Motion Hearing on # 4 MOTION for Preliminary Injunction set for 3/10/2016 at 9:30 AM in Syracuse before Chief Judge Glenn T. Suddaby. Defendants' Response to Motion due by 4:00 pm on 3/4/2016. Plaintiff's Reply to Response to Motion due by 4:00 pm on 3/8/2016. In the event that the parties intend to produce any witness testimony, the parties are directed to file a witness list and exhibit list by 3/8/2016. Plaintiff's counsel is directed to serve a copy of this text order upon defendants and file a certificate of service with the Court. (lmw) (Entered: 02/22/2016)

Letter Motion from Defendant for John Henley, Northeast Parent and Child Society, Northern Rivers Family Services, Inc. requesting adjournment of Motion Hearing submitted to Judge Suddaby . (Wein, Paul) (Entered: 02/26/2016)

Order on Letter Request

TEXT ORDER granting # 7 Defendants' Letter Request to adjourn the # 4 Ex Parte MOTION for Preliminary Injunction : Due to the Court's calendar, the Motion Hearing is RESCHEDULED for 3/8/2016 at 9:30 AM in Syracuse before Chief Judge Glenn T. Suddaby. As a result of this date change, Defendants' Response to Motion is now due by 4:00 pm on 3/2/2016. Plaintiff's Reply to Response to Motion is now due by 4:00 pm on 3/4/2016. If the parties intend to produce witness testimony, the parties are directed to file a witness list and exhibit list by 3/4/16. SO ORDERED by Chief Judge Glenn T. Suddaby on 2/26/16. (lmw) (Entered: 02/26/2016)

AFFIDAVIT of Service for Summons & Complaint, Motion for Preliminiary Injunction, Memorandum of Law, Exhibits, Declarations, and Text Order from Court served on Northern Rivers Family Services, Inc. and John Henley, Chief Executive Officer of Northern Rivers Family Services, Inc. on February 23, 2016, filed by Disability Rights New York. (Attachments: # 1 Affidavit)(Gadomski, Michael) (Entered: 02/26/2016)

***Answer due date updated for John Henley answer due 3/15/2016. (khr)

***Answer due date updated for Northern Rivers Family Services, Inc. answer due 3/15/2016. (khr)

NOTICE of Appearance by Peter M. Scolamiero on behalf of Northeast Parent and Child Society, Northern Rivers Family Services, Inc. (Attachments: # 1 Certificate of Service)(Scolamiero, Peter) (Entered: 02/26/2016)

Letter Motion from Peter M. Scolamiero, Esq. for Northeast Parent and Child Society, Northern Rivers Family Services, Inc. requesting extension to file response to Order to Show Cause submitted to Judge Suddaby . (Attachments: # 1 Certificate of Service)(Scolamiero, Peter) (Entered: 02/26/2016)

TEXT ORDER denying # 11 Defendant Northern Rivers Family Services and Northeast Parent and Child Society's Letter Request for a 14 day adjournment of the Motion for Preliminary Injunction. Motion Hearing remains scheduled for 3/8/2016 at 9:30 AM in Syracuse before Chief Judge Glenn T. Suddaby. Defendants' Response to Motion remains due by 4:00 pm on 3/2/2016. Plaintiff's Reply to Response to Motion remains due by 4:00 pm on 3/4/2016. If the parties intend to produce witness testimony, the parties are directed to file a witness list and exhibit list by 3/4/16. SO ORDERED by Chief Judge Glenn T. Suddaby on 2/29/16. (lmw) (Entered: 02/29/2016)

Order on Letter Request

AFFIDAVIT of Service for Affidavit of Service on Northeast Parent and Child Society served on 1 on February 25, 2016, filed by Disability Rights New York. (Gadomski, Michael) (Entered: 02/29/2016)

***Answer due date updated for Northeast Parent and Child Society answer due 3/18/2016. (khr)

AFFIDAVIT in Opposition re 4 Ex Parte MOTION for Preliminary Injunction filed by Northeast Parent and Child Society, Northern Rivers Family Services, Inc.. (Attachments: # 1 Exhibit(s) Exhibit A)(Scolamiero, Peter) (Entered: 03/02/2016)

CERTIFICATE OF SERVICE by Northeast Parent and Child Society, Northern Rivers Family Services, Inc. of Affidavit in Opposition to Plaintiff's Order to Show Cause (Scolamiero, Peter) (Entered: 03/02/2016)

Cross MOTION to Dismiss for Failure to State a Claim Preliminary Injunction Motion Hearing set for 3/8/2016 09:30 AM in Syracuse before Chief Judge Glenn T. Suddaby Response to Motion due by 2/22/2016 Reply to Response to Motion due by 2/26/2016. filed by John Henley. (Attachments: # 1 Affirmation, # 2 Memorandum of Law, # 3 Exhibit(s) Jonathan's Law) (Wein, Paul) Modified on 3/2/2016 to correct filer is only Def. Henley (lmw). (Entered: 03/02/2016)

1 Affirmation

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2 Memorandum of Law

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3 Exhibit(s) Jonathan's Law

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AFFIDAVIT in Support re 16 Cross MOTION to Dismiss for Failure to State a Claim Preliminary Injunction Affidavit of Service filed by John Henley. (Wein, Paul) (Entered: 03/02/2016)

Letter Motion from Michael W. Gadomski, Attorney for Plaintiff for Disability Rights New York requesting New Return Date and Brief Scheduling for Defendants Cross Motion submitted to Judge Glenn T. Suddaby . (Gadomski, Michael) (Entered: 03/03/2016)

TEXT NOTICE of Hearing on # 16 Defendant's Cross-MOTION to Dismiss for Failure to State a Claim: Motion Hearing set for 4/7/2016 on submission of motion papers before Chief Judge Glenn T. Suddaby. No oral argument. Response to Motion due by 3/21/2016. Reply to Response to Motion due by 3/28/2016. (lmw)

REPLY to Response to Motion re 4 Ex Parte MOTION for Preliminary Injunction Reply filed by Disability Rights New York. (Attachments: # 1 Affidavit, # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s), # 6 Exhibit(s), # 7 Exhibit(s), # 8 Exhibit(s), # 9 Exhibit(s), # 10 Exhibit(s))(Gadomski, Michael) (Entered: 03/04/2016)

AMENDED DOCUMENT by Disability Rights New York. Amendment to 19 Reply to Response to Motion, Amended Witness and Exhibit List. (Gadomski, Michael) (Entered: 03/04/2016)

CERTIFICATE OF SERVICE by Disability Rights New York of Subpoena on John Henley (Zucker, Cliff) (Entered: 03/04/2016)

AFFIDAVIT of Service for Subpoena on Northeast Parent and Child Society served on Attorneys for defendants on 03/04/2016, filed by Disability Rights New York. (Zucker, Cliff) (Entered: 03/04/2016)

AFFIDAVIT of Service for Subpoena on Northern Rivers Family Services served on Attorneys for Defendants on 03/04/2016, filed by Disability Rights New York. (Zucker, Cliff) (Entered: 03/04/2016)

AFFIDAVIT of Service for Subpoena on John Henley served on Attorneys for Defendants on 03/04/2016, filed by Disability Rights New York. (Zucker, Cliff) (Entered: 03/04/2016)

Witness List by Disability Rights New York. (Gadomski, Michael) (Entered: 03/07/2016)

Minute Entry for Evidentiary Hearing held on 3/8/16 before Chief Judge Glenn T. Suddaby with regard to # 4 MOTION for Preliminary Injunction: Counsel make legal arguments. Plaintiff's witnesses: Timothy Clune and Michael Gadomski. Counsel making closing arguments. APP: Jennifer Monthie, Esq., Cliff Zucker, Esq., Timothy Clune, Esq. and Michael Gadomski, Esq. for Plaintiff. Jeffrey Hurd, Esq. for Defs. Northern Rivers Family Services & Northeast Parent and Child Society; Paul Wein, Esq. for Def. Henley. CRD: L. Welch. (Court Reporter: Eileen McDonough) (lmw) (Entered: 03/08/2016)

Plaintiff's Exhibit List completed at motion hearing. All original exhibits returned to plaintiff's counsel to preserve for any potential appeal. (lmw) (Entered: 03/08/2016)

MOTION to Dismiss Motion Hearing set for 4/7/2016 10:00 AM in Albany before Chief Judge Glenn T. Suddaby Response to Motion due by 3/21/2016 Reply to Response to Motion due by 3/28/2016. filed by Northeast Parent and Child Society, Northern Rivers Family Services, Inc.. (Attachments: # 1 Affidavit Attorney Affidavit, # 2 Memorandum of Law, # 3 Certificate of Service) (Scolamiero, Peter) (Entered: 03/17/2016)

TEXT NOTICE of Hearing on # 28 MOTION to Dismiss filed by Defendants Northeast Parent and Child Society and Northern Rivers Family Services: Motion Hearing set for 4/21/2016 on submission of motion papers before Chief Judge Glenn T. Suddaby. No oral argument. Plaintiff's Response to Motion due by 4/11/2016. Defendants' Reply to Response to Motion due by 4/18/2016. The Court also sua sponte extends the deadline for Plaintiff to respond to the # 16 Cross-Motion to Dismiss for Failure to State a Claim filed by Defendant Henley until 4/11/16. Defendant's reply to that motion is due by 4/18/16. (lmw)

Plaintiff's Letter Motion from Michael W. Gadomski for Disability Rights New York requesting Permission to Submit Decision Relevant to the Pending Motion for Preliminary Injunction submitted to Judge Suddaby . (Gadomski, Michael) (Entered: 03/18/2016)

TEXT ORDER denying # 29 Plaintiff's Letter Request to file the recent Decision and Order issued by Senior Judge Gary L. Sharpe in Disability Rights New York vs. Wise, et al. (1:15-cv-32). The Court will take judicial notice of that decision and order when deciding Plaintiff's motion for preliminary injunction. SO ORDERED by Chief Judge Glenn T. Suddaby on 3/21/16. (lmw) (Entered: 03/21/2016)

Order on Letter Request

RESPONSE in Opposition re 16 Cross MOTION to Dismiss for Failure to State a Claim Preliminary Injunction, 28 MOTION to Dismiss filed by Disability Rights New York. (Gadomski, Michael) (Entered: 04/11/2016)

REPLY to Response to Motion re 16 Cross MOTION to Dismiss for Failure to State a Claim Preliminary Injunction, 28 MOTION to Dismiss filed by John Henley. (Wein, Paul) (Entered: 04/15/2016)

MEMORANDUM OF LAW re Notice of Hearing on Motion,, In Further Support of Motion to Dismiss filed by Northeast Parent and Child Society, Northern Rivers Family Services, Inc.. (Attachments: # 1 Certificate of Service)(Scolamiero, Peter) (Entered: 04/18/2016)

Letter Motion from Paul H. Wein, Esq. for John Henley requesting Adjournment of May 18, 2016 conference submitted to Judge Hon. Christian F. Hummel . (Wein, Paul) (Entered: 05/13/2016)

Order on Letter Request

ORDER granting 34 Letter Request to adjourn Initial Conference: The Rule 16 Initial Conference scheduled for May 18, 2016 at 9:00 AM before Magistrate Judge Christian F. Hummel and the deadline to submit a proposed Civil Case Management Plan and exchange Mandatory Disclosures are ADJOURNED without date pending a decision on the dispositive motions. Authorized by Magistrate Judge Christian F. Hummel on 5/13/16. (tab) (Entered: 05/13/2016)

DECISION AND ORDER granting # 4 Plaintiff's Motion for Preliminary Injunction; denying # 16 Individual Defendants' Cross-Motion to Dismiss; and denying # 28 Entity Defendants' Motion to Dismiss. Defendants are preliminarily enjoined from denying Plaintiff, so that it may exercise its rights-and-safety-monitoring function in accordance with the DD Act and/or the PAIMI Act (and their implementing regulations), provided that all activities of Plaintiff are conducted so as to minimize interference with the Children's Home's programs or treatment, respect its residents privacy interests, and honor a resident's request to terminate any interview of him or her: (1) reasonable unaccompanied access to all areas of the Children's Home that are used by, or are accessible to, its residents; (2) reasonable unaccompanied access to the Children's Home's programs; (3) reasonable unaccompanied access to the Children's Home's residents; (4) the opportunity to attend treatment planning meetings concerning individuals with developmental disabilities with the consent of the individual or his or her guardian, conservator or other legal representative; and (5) the ability to post, in an area where individuals with developmental disabilities receive services, a poster that states the protection and advocacy services available from Plaintiff (including the name, address and telephone number of Plaintiff. Defendants are also preliminarily enjoined from denying Plaintiff the following, so that Plaintiff may exercise its incident-investigation function in accordance with the DD Act and/or the PAIMI Act (and their implementing regulations): (1) access to the records of R.W. and T.H. that were prepared or received by staff at the Children's Home; and (2) the reasonable opportunity to interview any resident or employee of the Children's Home who might be reasonably believed by Plaintiff to have knowledge of the incident(s) under investigation (i.e., the incidents involving R.W. and/or T.H.). Signed by Chief Judge Glenn T. Suddaby on 6/2/16. (lmw) (Entered: 06/02/2016)

Order

TEXT ORDER directing Defendants to file an answer to Plaintiff's Complaint by 6/16/16 pursuant to Fed.R.Civ.P. Rule 12(a)(4)(a), and this case is referred back to Magistrate Judge Hummel for a Rule 16 conference and the setting of pretrial scheduling deadlines. Plaintiff is directed to file a status report by 6/9/16 indicating whether it intends to proceed with this matter or if it intends to voluntarily discontinue it without prejudice. SO ORDERED by Chief Judge Glenn T. Suddaby on 6/2/16. (lmw) (Entered: 06/02/2016)

STATUS REPORT by Disability Rights New York. (Gadomski, Michael) (Entered: 06/09/2016)

NOTICE of Hearing: The Initial Conference in this case has been set for Wednesday, 7/6/2016 @ 10:30 AM in Albany before Magistrate Judge Christian F. Hummel. Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 6/29/2016. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (tab) (Entered: 06/10/2016)

ANSWER to 1 Complaint, by Northeast Parent and Child Society, Northern Rivers Family Services, Inc..(Scolamiero, Peter) (Entered: 06/15/2016)

CERTIFICATE OF SERVICE by Northeast Parent and Child Society, Northern Rivers Family Services, Inc. re 40 Answer to Complaint (Scolamiero, Peter) (Entered: 06/15/2016)

ANSWER to 1 Complaint, by John Henley.(Wein, Paul) (Entered: 06/16/2016)

CERTIFICATE OF SERVICE by John Henley (Wein, Paul) (Entered: 06/23/2016)

NOTICE of Appearance by Paul H. Wein on behalf of All Defendants (Wein, Paul) (Entered: 06/29/2016)

CIVIL CASE MANAGEMENT PLAN Joint Civil Case Management Plan by Disability Rights New York. (Monthie, Jennifer) (Main Document 45 replaced on 6/29/2016) (khr, ). (Entered: 06/29/2016)

CLERK'S CORRECTION OF DOCKET ENTRY re 45 CIVIL CASE MANAGEMENT PLAN. The original document was not in pdf format. Replaced with a pdf document. (khr)

Letter Motion from Plaintiff for Disability Rights New York requesting Adjournment of Initial Conference submitted to Judge Hummel . (Gadomski, Michael) (Entered: 07/05/2016)

Order on Letter Request

TEXT ORDER granting 46 Letter Request to adjourn initial conference. A Status Report is due by 7/15/2016. Authorized by Magistrate Judge Christian F. Hummel on 7/5/2016. (tab) (Entered: 07/05/2016)

STATUS REPORT by Disability Rights New York. (Gadomski, Michael) (Entered: 07/15/2016)

NOTICE of Status Conference: A Status Conference has been set for Thursday, 8/11/2016 @ 9:30 AM in Albany before Magistrate Judge Christian F. Hummel. Counsel are to appear for this conference in person. (tab) (Entered: 07/18/2016)

First MOTION So Ordered Motion Hearing set for 9/1/2016 10:00 AM in Syracuse before Chief Judge Glenn T. Suddaby Response to Motion due by 8/15/2016 filed by Disability Rights New York. (Attachments: # 1 Declaration In Support of Joint Motion For Stipulation of Settlement and Consent Decree, # 2 Proposed Order/Judgment Stipulation of Settlement and Consent Decree) Motions referred to Christian F. Hummel. (Monthie, Jennifer) (Entered: 07/20/2016)

ORDER approving # 50 Stipulation of Settlement and Consent Decree. Signed by Chief Judge Glenn T. Suddaby on 7/21/16. (lmw) (Entered: 07/21/2016)