Disability Rights New York v. N.Y.S. Dep't of Corr. & Cmty. Supervision

DECISION and ORDER Currently before the Court, in this civil rights action filed by Disability Rights New York (“Plaintiff”) against the New York State Department of Corrections and Community Supervision (“DOCCS”) and Acting Commissioner of DOCCS Anthony J. Annucci (collectively, the “Defendants”), is Plaintiff’s motion for a preliminary injunction requiring Defendants to provide access to copies of certain documents requested pursuant to Plaintiff’s authority as the designated Protection and Advocacy (“P&A”) system for New York. (Dkt. No. 6.) For the reasons set forth below, Plaintiff’s motion is granted. I. RELEVANT BACKGROUND A. Plaintiff’s Complaint Generally, in its Complaint, Plaintiff’s asserts three claims: (1) a claim that Defendants’ failure to provide Plaintiff with requested records violates the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (the “DD Act”), 42 U.S.C. §15041 et seq., and its implementing regulation, 45 C.F.R. §1326.25 (“DD Access Regulation”); (2) a claim that Defendants’ refusal to provide records as designated by law violates the Protection and Advocacy for Assistive Technology Act of 2004 (the “PAAT Act”), 29 U.S.C. §3002 et seq., and its implementing regulations; and (3) a claim that Defendants’ refusal to promptly provide the requested records violates the Protection and Advocacy for Individuals with Mental Illness Act of 1986 (the “PAIMI Act”), 42 U.S.C. §10801 et seq., and its implementing regulation, 42 C.F.R. §51.41 (“PAIMI Access Regulation”) (collectively, the “P&A Acts”). (Dkt. No. 1 [Pl.'s Compl.].) Generally, Plaintiff’s claims arise from Defendants’ refusal to provide Plaintiff with the records that it had requested, pursuant to its authority as the P&A system for New York, for Incarcerated Individual A on January 4, 2021, Incarcerated Individual B on January 7, 2021, and Incarcerated Individual C on January 11, 2021.¹ More specifically, Plaintiff’s Complaint alleges as follows. (Dkt. No. 1 [Pl.'s Compl.].) As to Incarcerated Individual A, with Incarcerated Individual A’s authorization, Plaintiff’s representative submitted a written records request to Defendants seeking copies of relevant records; but Defendants stated that those records would not be available for physical inspection, nor would they be copied and produced. (Id. at 7-8.) As to Incarcerated Individual B, with Incarcerated Individual B’s authorization, Plaintiff’s representative submitted a written records request to Defendants seeking copies of relevant records; but Defendants again stated that those records would not be available for physical inspection, nor would they be copied and produced. (Id. at 8-10.) Finally, as to Incarcerated Individual C, with Incarcerated Individual C’s authorization, Plaintiff’s representative submitted a written records request to Defendants seeking copies of relevant records; but Defendants again stated that those records would not be available for physical inspection, nor would they be copied and produced. (Id. at 10-11.) As of the date of this Decision and Order, Plaintiff has not received any of the requested records pertaining to Incarcerated Individual A, Incarcerated Individual B, or Incarcerated Individual C. (Id.) B. Relevant Procedural History This case is the latest battle of an ongoing struggle between Plaintiff and Defendant about the provision of records related to individuals with mental or developmental disabilities incarcerated in DOCCS facilities. See Disability Rights New York v. New York State Dep’t of Corrs. and Cmty. Supervision, 18-CV-0980 (GTS/CFH) (“DRNY I”); Disability Rights New York v. New York State Dep’t of Corrs. and Cmty. Supervision, 20-CV-1487 (GTS/CFH) (“DRNY II”). For the sake of brevity, the Court will assume the reader’s familiarity with the parties’ first two battles. On June 28, 2021, Plaintiff filed its Complaint in this action. (Dkt. No. 1 [Pl.'s Compl.].) On June 28, 2021, Plaintiff filed the current motion for preliminary injunction, seeking an order restraining Defendants from denying Plaintiff access to the requested records made pursuant to the relevant P&A Acts. (Dkt. No. 6.) On September 10, 2021, Defendants filed their opposition. (Dkt. No. 17 [Defs.' Opp'n Mem. of Law].) Finally, on October 6, 2021, Plaintiff filed its reply. (Dkt. No. 21 [Pl.'s Reply Mem. of Law].) The Court dispensed with a hearing because Defendants never requested one, and because in any event it was not necessary.² C. Briefing on Plaintiff’s Motion 1. Plaintiff’s Memorandum of Law Generally, in support of its motion for a preliminary injunction, Plaintiff asserts two main arguments. First, Plaintiff argues that, given its designation as the P&A system in New York State, it is entitled to access records maintained and held by Defendants. (Dkt. No. 6, Attach. 2, at 7-10 [Pl.'s Mem. of Law].) More specifically, Plaintiff argues that its request for records meets the statutory criteria for records access and Defendants have no legal justification for refusing to provide copies of the records requested by Plaintiff. (Id. at 8-10.) Second, Plaintiff argues that its federal mandate to protect people with disabilities in New York State meets the requirements for a preliminary injunction because (a) it is likely to succeed on the merits of its claims, (b) it will suffer irreparable harm absent the Court’s intervention, (c) the balance of hardships weighs in favor of granting the injunction, and (d) the public interest will be advanced by the provision of preliminary relief. (Id. at 10-13.) 2. Defendants’ Opposition Memorandum of Law Generally, in their opposition to Plaintiff’s motion, Defendants argue that the Court should deny Plaintiff’s motion for a preliminary injunction for two reasons: (1) Plaintiff failed to establish by a clear or substantial likelihood of success on the merits of its claims because it (a) failed to identify the records it had requested, and (b) requested to obtain copies of the records before it had physically inspected them; and (2) Plaintiff failed to establish that it would be irreparably harmed by Defendant DOCCS’ failure to provide it with copies of the requested records. (Dkt. No. 17, at 4-14 [Defs.' Opp'n Mem. of Law].) 3. Plaintiff’s Reply Memorandum of Law Generally, in its reply to Defendants’ opposition, Plaintiff asserts four arguments. (Dkt. No. 21 [Pl.'s Reply Mem. of Law].) First, Plaintiff argues that the Court should grant its motion for a preliminary injunction because the plain language of the P&A Acts prohibit a service provider from denying the P&A system access to records. (Id. at 3-5.) More specifically, Plaintiff argues that Defendants incorrectly (a) interpreted the P&A Acts to require Plaintiff to visit Defendants’ facilities to view the records it seeks prior to obtaining copies of them, and (b) asserted that the timeframe for producing copies of records begins only after they retrieve the records for copying. (Id. at 4-5.) Second, Plaintiff argues that the DD Access Regulation and PAIMI Access Regulation clearly afford Plaintiff access to copies of records upon a written request, and copies of such records must be made available within the timeframes set forth by the respective access regulation. (Id. at 5.) More specifically, Plaintiff argues that Defendants incorrectly rely on the Court’s prior rulings to assert that the rulings control the timeframe for responding to requests for records production. (Id. at 6.) Third, Plaintiff argues that the U.S. Department of Health and Human Services’ (“HHS”) interpretation of the P&A Acts and access regulations are entitled to a degree of deference.³ (Id. at 7-8.) Fourth, Plaintiff argues that it would suffer irreparable harm from Defendants’ denial of access to the relevant records because a P&A system suffers irreparable harm when it is unable to access records that it has requested, resulting in it failing to further its statutory mandates. (Id. at 8-10.) II. GOVERNING LEGAL STANDARDS A. Legal Standard Governing Motions for Preliminary Injunction “‘The purpose of a preliminary injunction is…to preserve the relative positions of the parties.’” N. Am. Soccer League, LLC v. U.S. Soccer Fed’n, Inc., 883 F.3d 32, 37-38 (2d Cir. 2018) (quoting Univ. of Texas v. Camenisch, 451 U.S. 390, 395 [1981]). “A preliminary injunction is an ‘extraordinary and drastic remedy’…. ; it is never awarded as of right….” Munaf v. Green, 553 U.S. 674, 689-90 (2008) (internal citations omitted). Generally, in the Second Circuit, a party seeking a preliminary injunction must establish the following three elements: (1) that there is either (a) a likelihood of success on the merits and a balance of equities tipping in the party’s favor or (b) a sufficiently serious question as to the merits of the case to make it a fair ground for litigation and a balance of hardships tipping decidedly in the party’s favor; (2) that the party will likely experience irreparable harm if the preliminary injunction is not issued; and (3) that the public interest would not be disserved by the relief. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (reciting standard limited to the first part of the above-stated elements and using word “equities” instead of the word “hardships” and deleting the word “decidedly”); accord, Glossip v. Gross, 135 S. Ct. 2726, 2736-37 (2015); see also Am. Civil Liberties Union v. Clapper, 785 F.3d 787, 825 (2d Cir. 2015) (reciting standard including the second part of second above-stated element and using words “hardships” and “decidedly”); Citigroup Glob. Mkts., Inc v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 38 (2d Cir. 2010) (holding that “our venerable standard for assessing a movant’s probability of success on the merits remain valid [after the Supreme Court's decision in Winter]“). With regard to the first part of the first element, a “likelihood of success” requires a demonstration of a “better than fifty percent” probability of success. Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985), disapproved on other grounds, O’Lone v. Estate of Shabazz, 482 U.S. 342, 349, n.2 (1987). “A balance of equities tipping in favor of the party requesting a preliminary injunction” means a balance of the hardships against the benefits. See, e.g., Ligon v. City of New York, 925 F. Supp.2d 478, 539 (S.D.N.Y. 2013) (characterizing the balancing “hardship imposed on one party” and “benefit to the other” as a “balance[ing] [of] the equities”); Jones v. Nat’l Conf. of Bar Exam’rs, 801 F. Supp.2d 270, 291 (D. Vt. 2011) (considering the harm to plaintiff and any “countervailing benefit” to plaintiff in balancing the equities); Smithkline Beecham Consumer Healthcare, L.P. v. Waston Pharm., Inc., 99-CV-9214, 1999 WL 34981557, at *4-5 (S.D.N.Y. Sept. 13, 1999) (considering the harm to defendant and the “benefit” to consumers in balancing the equities); Arthur v. Assoc. Musicians of Greater New York, 278 F. Supp. 400, 404 (S.D.N.Y. 1968) (characterizing “balancing the equities” as “requiring plaintiffs to show that the benefit to them if an injunction issues will outweigh the harm to other parties”); Rosenstiel v. Rosenstiel, 278 F. Supp. 794, 801-02 (S.D.N.Y. 1967) (explaining that, in order to “balance the equities,” the court “will consider the hardship to the plaintiff…, the benefit to [the] plaintiff…, and the relative hardship to which a defendant will be subjected”) (internal quotation marks omitted).⁴ With regard to the second part of the first element, “[a] sufficiently serious question as to the merits of the case to make it a fair ground for litigation” means a question that is so “substantial, difficult and doubtful” as to require “a more deliberate investigation.” Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953); accord, Semmes Motor, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205-06 (2d Cir. 1970).⁵ “A balance of hardships tipping decidedly toward the party requesting a preliminary injunction” means that, as compared to the hardship suffered by the other party if the preliminary injunction is granted, the hardship suffered by the moving party if the preliminary injunction is denied will be so much greater that it may be characterized as a “real hardship,” such as being “driven out of business…before a trial could be held.” Buffalo Courier-Express, Inc. v. Buffalo Evening News, Inc., 601 F.2d 48, 58 (2d Cir. 1979); Int’l Bus. Mach. v. Johnson, 629 F. Supp.2d 321, 333-34 (S.D.N.Y. 2009); see also Semmes Motors, Inc., 429 F.2d at 1205 (concluding that the balance of hardships tipped decidedly in favor of the movant where it had demonstrated that, without an injunctive order, it would have been forced out of business as a Ford distributor).⁶ With regard to the second element, “irreparable harm” is “certain and imminent harm for which a monetary award does not adequately compensate.” Wisdom Import Sales Co. v. Labatt Brewing Co., 339 F.3d 101, 113 (2d Cir. 2003). Irreparable harm exists “where, but for the grant of equitable relief, there is a substantial chance that upon final resolution of the action the parties cannot be returned to the positions they previously occupied.” Brenntag Int’l Chem., Inc. v. Bank of India, 175 F.3d 245, 249 (2d Cir. 1999). With regard to the third element, the “public interest” is defined as “[t]he general welfare of the public that warrants recognition and protection,” and/or “[s]omething in which the public as a whole has a stake[,] esp[ecially], an interest that justifies governmental regulation.” Public Interest, Black’s Law Dictionary (9th ed. 2009). The Second Circuit recognizes three limited exceptions to the above-stated general standard. Citigroup Glob. Mkts., Inc., 598 F.3d at 35, n.4. First, where the moving party seeks to stay government action taken in the public interest pursuant to a statutory or regulatory scheme, the district court should not apply the less rigorous “serious questions” standard but should grant the injunction only if the moving party establishes, along with irreparable injury, a likelihood that he will succeed on the merits of his claim. Id. (citing Able v. United States, 44 F.3d 128, 131 [2d Cir. 1995]); see also Otoe-Missouria Tribe of Indians v. New York State Dep’t of Fin. Servs., 769 F.3d 105, 110 (2d Cir. 2014) (“A plaintiff cannot rely on the ‘fair-ground-for-litigation’ alternative to challenge governmental action taken in the public interest pursuant to a statutory or regulatory scheme.”) (internal quotation marks omitted). This is because “governmental policies implemented through legislation or regulations developed through presumptively reasoned democratic processes are entitled to a higher degree of deference and should not be enjoined lightly.” Able, 44 F.3d at 131. Second, a heightened standard — requiring both a “clear or substantial” likelihood of success and a “strong” showing of irreparable harm” — is required when the requested injunction (1) would provide the movant with all the relief that is sought and (2) could not be undone by a judgment favorable to non-movant on the merits at trial. Citigroup Glob. Mkts., Inc., 598 F.3d at 35, n.4 (citing Mastrovincenzo v. City of New York, 435 F.3d 78, 90 [2d Cir. 2006]); New York v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015) (“When either condition is met, the movant must show [both] a ‘clear’ or ‘substantial’ likelihood of success on the merits…and make a ‘strong showing’ of irreparable harm’….”) (emphasis added). Third, the above-described heightened standard may also be required when the preliminary injunction is “mandatory” in that it would “alter the status quo by commanding some positive act,” as opposed to being “prohibitory” by seeking only to maintain the status quo. Citigroup Glob. Mkts., Inc., 598 F.3d at 35, n.4 (citing Tom Doherty Assocs. v. Saban Entm’t, 60 F.3d 27, 34 [2d Cir. 1995]).⁷ Because the parties have demonstrated in their memoranda of law an adequate understanding of this legal standard, the Court need not, and does not, further elaborate on this legal standard in this Decision and Order, which (again) is intended primarily for the review of the parties. B. Legal Standard Governing Access to Records by a P&A System Under the DD Act, a P&A system has the authority to, among other things, “investigate incidents of abuse and neglect of individuals with developmental disabilities if the incidents are reported to the system or if there is probable cause to believe the incidents occurred,” and “have access to all records of (i) any individual with a developmental disability who is a client of the system if such individual, or the legal guardian, conservator, or other legal representative of such individual, has authorized the system to have such access,” and “(ii) any individual with a developmental disability, in a situation in which…a complaint has been received by the system about the individual with regard to the status or treatment of the individual or, as a result of monitoring or other activities, there is probable cause to believe that such individual has been subject to abuse or neglect.” 42 U.S.C. §15043(a)(2).⁸ The P&A system is permitted “access” to the records of such individuals (and any other records that are relevant to conducting an investigation), “not later than 3 business days after the system makes a written request for the records involved….” 42 U.S.C. §15043(a)(2)(J)(i). The P&A system is permitted to inspect and copy information and records, subject to a reasonable charge offsetting the duplicating costs, and “[i]f a party other than the P&A system performs the photocopying or other reproduction of records, it shall provide the photocopies or reproductions to the P&A system within the time frame specified [above]….” 45 C.F.R. §1326.25(d). Finally, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) “permits the disclosure of protected health information without the authorization of the individual to a P&A system to the extent such disclosure is required by law and the disclosure complies with the requirements of that law.” 45 C.F.R. §1326.25(e).⁹ Under the PAIMI Act, a P&A system has the authority to, among other things, “investigate incidents of abuse and neglect of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe the incidents occurred,” “have access to facilities in the State providing care or treatment, and “have access to all records of (A) any individual who is a client of the system if such individual, or the legal guardian, conservator, or other legal representative of such individual, has authorized the system to have such access,” or “(B) any individual (including an individual who has died or whose whereabouts are unknown)…with respect to whom a complaint has been received by the system or with respect to whom as a result of monitoring or other activities (either of which result from a complaint or other evidence) there is probable cause to believe that such individual has been subject to abuse or neglect.” 42 U.S.C. §10805(a).¹⁰ The P&A system “shall be permitted to inspect and copy records, subject to a reasonable charge to offset duplicating costs,” and access to records under the PAIMI Act “shall be extended promptly” to the P&A. 42 C.F.R. §51.41(a), (e). Additionally, “[i]f a P&A system’s access to facilities, programs, residents or records…delayed or denied, the P&A system shall be provided promptly with a written statement of reasons.” 42 C.F.R. §51.43.¹¹ Under the PAAT Act, to “enable[e] such systems to assist in the acquisition, utilization, or maintenance or assistive technology devices or assistive services for individuals with disabilities,” a P&A system has the “same general authority as the systems are afforded under subtitle C of title I of the DD Act.” 29 U.S.C. §3004(a)(1), (2). Finally, pursuant to a New York law, effective as of December 22, 2021, Copies of records shall be provided to the independent agency free of charge within three business days of receipt of a written request, or if there is a complaint of health or safety placing individuals in serious and immediate jeopardy, or in the case of the death of an individual with a disability, within twenty-four hours of receipt of a written request. 2021 N.Y. Sess. Laws Ch. 755 (McKinney).¹² III. ANALYSIS After carefully considering whether Plaintiff is entitled to a preliminary injunction requiring Defendants to provide it with copies to the records requested by Plaintiff, the Court answers this question in the affirmative for the relevant reasons stated in Plaintiff’s memoranda of law. See, supra, Parts I.C.1. and I.C.3. of this Decision and Order. To those reasons, the Court adds the following analysis. As an initial matter, the Court agrees with Defendants that Plaintiff’s motion should be analyzed under the stricter standard of “clear or substantial” likelihood of success and “strong” showing of irreparable harm given the nature and extent of relief that Plaintiff seeks. As discussed above in Part I.C.1. of this Decision and Order, Plaintiff seeks a preliminary injunction ordering Defendants to provide it with the relevant records requested for Incarcerated Individual A, Incarcerated Individual B, and Incarcerated Individual C. (Dkt. No. 6.) Were this Court to grant Plaintiff’s request for a preliminary injunction and order Defendants to provide Plaintiff with the requested records, that injunction would alter the status quo that currently exists between the parties in that Plaintiff would now obtain documents in a method to which Defendants assert that Plaintiff is not entitled to pursue. As a result, the Court will apply the stricter standard when assessing Plaintiff’s entitlement to a preliminary injunction. A. Clear or Substantial Likelihood of Success on the Merits First, the Court finds that Plaintiff has shown a clear or substantial likelihood of success on the merits of at least one of its claims, specifically its claim that Defendants’ actions regarding the requests for records related to Incarcerated Individual A, Incarcerated Individual B, and Incarcerated Individual C violated the DD Act and PAIMI Act. Although the P&A Acts contain identical obligations and requirements in many respects, they do contain some differences; so it is important to clarify which act applies to which of the relevant individuals. In the Complaint, Plaintiff alleges that Incarcerated Individual A is an individual with a physical disability, Incarcerated Individual B is an individual with a developmental disability, and Incarcerated Individual C is an individual with a mental illness. (Dkt. No. 1, at