CARL DIMPERIO JR v. BRIAN FISCHER (2016)

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the order of the District Court is AFFIRMED.

Appellant Carl A. Dimperio, Jr., proceeding pro se, appeals from an order granting summary judgment to Appellee New York State Department of Corrections and Community Supervision (“DOCCS”) and dismissing his suit under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., asserting that DOCCS discriminated against him by denying him participation in so–called “shock incarceration”¹ and work release programs. We assume the parties' familiarity with the underlying facts, procedural history, and issues on appeal.

We review de novo a district court's grant of summary judgment. Garcia v. Hartford Police Dep't, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Where, as here, the party opposing summary judgment bears the burden of proof at trial, summary judgment should be granted if the moving party can “point to an absence of evidence to support an essential element of the nonmoving party's claim.” Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).

As an initial matter, DOCCS primarily urges that we affirm the district court's judgment on the alternative ground that Dimperio failed to exhaust his administrative remedies. As DOCCS concedes, however, it failed to raise this as an affirmative defense in its answer. Although we have held that a district court has “discretion to entertain [an affirmative] defense when it is raised in a motion for summary judgment, by construing the motion as one to amend the defendant's answer,” Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 283 (2d Cir. 2000), and Dimperio did not object that the defense was not timely raised, neither the magistrate judge nor the district court reached the issue of exhaustion. We therefore decline to determine, in the first instance, either the merits or permissibility of considering the defense.

We conclude, however, that the district court properly determined that Dimperio failed to demonstrate a prima facie case of ADA discrimination. To have done so, Dimperio was required to demonstrate that he was a “qualified individual with a disability”—i.e., “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices ․ meets the essential eligibility requirements for ․ participation in programs or activities provided by a public entity.” Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 186 (2d Cir. 2015) (quoting 42 U.S.C. § 12131(2)). The plaintiff “bears the burdens of both production and persuasion as to the existence of some accommodation that would allow the plaintiff to meet the essential requirements of the service, program, or activity at issue.” Id. at 190.

Dimperio failed to present evidence of the existence of a reasonable accommodation to the programs in question. He asserted only that DOCCS was obligated under state law to create an “alternative–to–shock–incarceration program” for inmates whom a court orders to participate in shock incarceration but who require “a degree of medical care or mental health care that cannot be provided at a shock incarceration facility,” N.Y. PENAL LAW § 60.04(7)(b). Dimperio thus did not identify any modification to the standard incarceratory or work release programs to which he sought access. Instead, he sought creation of an individualized, alternative program akin to those created pursuant to § 60.04(7)(b). However, Title II of the ADA requires only the implementation of reasonable modification to existing programs, not the creation of alternative programs. See Wright v. Giuliani, 230 F.3d 543, 548 (2d Cir. 2000); Rodriguez v. City of New York, 197 F.3d 611, 619 (2d Cir. 1999). Accordingly, Dimperio failed to carry his burden of establishing that a reasonable modification to the shock incarceration or work release programs existed and would have allowed him to otherwise satisfy the essential requirements of those programs.

We have considered Dimperio's remaining arguments and find them to be without merit. For the reasons stated above, the order of the District Court is AFFIRMED.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk

FOOTNOTES

1.   These programs “provide rigorous physical activity, intensive regimentation and discipline and rehabilitation therapy and programming.” N.Y. CORRECT. LAW § 865[2].