Monroe S. Harris, B.S., D.O. v. Richard P. Mills, Commissioner of Education, Merryl H. Tisch, Regent Chancellor, David A. Paterson, Governor

Monroe S. Harris appeals from a judgment of the United

22 States District Court for the Southern District of New York

23 (Victor Marrero, Judge). Harris was formerly licensed by the

24 state of New York as a doctor of osteopathic medicine; his

25 medical license was revoked because he was found to have

26 committed fraud and engaged in improper medical practices. At

27 issue is the New York State Education Department's denial of

28 Harris's petition to reinstate his license. Harris brought this

29 action pro se pursuant to, inter alia, Title II of the Americans

30 with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq., the

31 Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., and 42

3

1 U.S.C. § 1983. He claims to have been illegally denied a

2 reasonable accommodation for his cognitive disabilities and

3 unconstitutionally deprived of due process of law.

4 The district court granted the individual defendants'

5 motion to dismiss the ADA and Rehabilitation Act accommodation

6 claims because the court concluded that those statutes do not

7 provide for individual liability. The district court also

8 dismissed the Rehabilitation Act claim and the remaining claims

9 for failure to state a claim upon which relief can be granted.

10 Although we disagree with some of the district court's reasoning,

11 we agree with it that the plaintiff's claims are legally

12 insufficient, even when read with the lenity that must attend the

13 review of pro se pleadings.

14 We therefore affirm the judgment.

15 BACKGROUND

16 This appeal is but the latest chapter in a litigation

17 arising out of the 1999 revocation of Harris's license to

18 practice medicine by the New York State Board for Professional

19 Medical Conduct (the "Board").

20 The Revocation of the License

21 The Board revoked Harris's license to practice

22 osteopathic medicine in part because it found, after an

23 investigation and a hearing, that Harris had committed

24 "fraudulent practice" and had made false statements when he

25 submitted applications for reappointment to three different

26 hospitals. See Harris v. N.Y. State Dep't of Health, 202 F.

That investigation resulted in a formal acknowledgment of 1

wrongdoing by Harris. See Harris I, 202 F. Supp. 2d at 148.

4

1 Supp. 2d 143, 148-49 (S.D.N.Y. 2002) ("Harris I"). Harris had

2 asserted in the applications that he was not at the time a

3 subject of disciplinary action, even though he was in fact then

4 under investigation by the Bureau of Controlled Substances of the

5 New York State Department of Health for allegations of illegally

6 storing and dispensing controlled substances. See id. at 148. 1

7 He also failed to disclose his previous misconduct in two other

8 reappointment applications and failed to disclose, in an

9 application to the New York State Education Department for

10 renewal of his medical license, that his practice privileges at a

11 hospital had been terminated. See id.

12 The Board also found that Harris had provided negligent

13 and incompetent medical care. He had, for example,

14 inappropriately prescribed diet pills to one patient and had

15 prescribed to another patient a drug contraindicated for that

16 patient's heart condition. See id. at 149. The Board also found

17 that Harris had failed to maintain records adequately. See id.

18 The Board's revocation was affirmed by the State

19 Administrative Review Board. See id. at 150. Harris then

20 initiated a proceeding pursuant to Article 78 of the New York

21 Civil Practice Law and Rules, N.Y. C.P.L.R. § 7801 et seq., in

22 the New York State Supreme Court, Appellate Division. The

23 Appellate Division confirmed the Administrative Review Board's

5

1 decision and dismissed the petition. Harris v. Novello, 276

2 A.D.2d 848, 714 N.Y.S.2d 365 (3d Dep't 2000).

3 Thereafter, Harris brought a lawsuit against the New

4 York State Department of Health ("DOH") in the district court.

5 In it, he challenged the Board's revocation of his license,

6 "alleg[ing] that DOH refused to acknowledge evidence of his

7 learning disabilities and revoked his medical license without

8 considering or offering him reasonable means to accommodate those

9 disabilities," in violation of Section 504 of the Rehabilitation

10 Act of 1973, 29 U.S.C. § 794, and Title II of the ADA. Harris I,

11 202 F. Supp. 2d at 164. He also alleged "deficiencies in DOH's

12 procedures" in violation of the Due Process Clause of the

13 Fourteenth Amendment to the United States Constitution. Id.

14 The district court granted DOH's motion to dismiss in

15 light of the prior state proceedings, concluding that "Harris's

16 efforts to relitigate . . . the revocation of his medical license

17 are barred by application of the Rooker-Feldman doctrine." Id.

18 at 165; see D.C. Court of Appeals v. Feldman, 460 U.S. 462

19 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413 (1923). The court

20 also concluded that the ADA and Rehabilitation Act claims against

21 the state agency were barred by operation of the Eleventh

22 Amendment, Harris I, 202 F. Supp. 2d at 173-74, and that the due

23 process claim against the DOH was barred because that agency is

24 not a "person" within the meaning of 42 U.S.C. § 1983, and

25 because the Eleventh Amendment precluded the due process claim

26 insofar as it sought money damages, id. at 178.

That body of the Education Department has jurisdiction to 2

"restore a license" of a "former licensee found guilty of

professional misconduct." N.Y. Educ. Law § 6511.

6

1 The Petition for Restoration

2 In February 2002, Harris applied to the New York Board

3 of Regents, seeking to restore his license to practice medicine. 2

4 After meeting with Harris, a "Peer Committee" issued a report

5 recommending that the Education Department deny his application.

6 On June 7, 2004, the Education Department's Committee on the

7 Professions met with Harris. It subsequently issued a report

8 following the Peer Committee's recommendation. The Board of

9 Regents affirmed. Harris does not assert that he made any

10 further attempt to obtain review from New York state courts.

11 Harris brought this action pro se against the Education

12 Department pursuant to the ADA, Section 504 of the Rehabilitation

13 Act, and 42 U.S.C. § 1983. The district court dismissed the

14 action sua sponte. Harris v. N.Y. State Educ. Dep't, 419 F.

15 Supp. 2d 530, 535-36 (S.D.N.Y. 2006) ("Harris II"). The court

16 observed that Harris's complaint was, in large part, an attempt

17 to relitigate matters the court had already resolved in Harris I.

18 Id. at 532. Insofar as the complaint "related to [Harris's]

19 petition to restore his medical license," id., the court

20 dismissed the ADA and Section 1983 claims against the state

21 agency on sovereign immunity grounds, id. at 532-34. The court

22 concluded that the state's sovereign immunity had been waived for

23 the purposes of Harris's Rehabilitation Act claim. Id. at 534.

The Education Department is no longer a defendant in this 3

action.

7

1 But the court observed that the complaint failed to make clear

2 what sort of "accommodation" Harris was denied, and the court

3 therefore dismissed the Rehabilitation Act claim "with leave to

4 amend to more fully articulate what reasonable accommodation

5 [Harris] requested and how the alleged failure to accommodate

6 resulted in the State's discriminatory refusal to restore his

7 medical license." Id. at 535.

8 The Amended Complaint

9 Harris, continuing to act pro se, filed an amended

10 complaint -- the complaint at issue on this appeal -- against the

11 Commissioner of Education, the Regent Chancellor, and the

12 Governor of the State of New York. Harris requests injunctive, 3

13 declaratory, and monetary relief under the ADA; the

14 Rehabilitation Act; Section 1983 and 42 U.S.C. § 1988; the First,

15 Fourth, and Fourteenth Amendments to the United States

16 Constitution; and also pursuant to his assertion that the

17 decision to deny the reinstatement petition was "[a]rbitrary and

18 capricious" inasmuch as the defendants failed to follow their own

19 procedural rules. Am. Compl. ¶¶ 184-95. In the amended

20 complaint, Harris seeks, inter alia, an order granting Harris's

21 application for reinstatement of his license, together with such

22 "accommodation[]s . . . as might be necessary," and additional

23 injunctive relief. Id. ¶¶ a-b.

8

1 The amended complaint alleges that in 1998, on the

2 advice of counsel and while his investigation by the Board was

3 ongoing, see id. ¶ 34, Harris was diagnosed with "learning

4 disabilities . . . i.e. disorder of written expression and 'rule

5 out' reading disorder and Attention Deficit Hyperactivity

6 Disorder," id. ¶ 7. Harris alleges that as a result of those

7 conditions, he has "difficulty with comprehending the written

8 word" and "a related problem with written expression." Id. ¶ 11.

9 Harris further alleges that it is possible for him to

10 "compensate" for these disabilities and, in theory, to "practice

11 medicine or law, or any other discipline." Id. ¶ 14. Harris

12 asserts that that is just what he has done, obtaining degrees

13 from college and a school of osteopathic medicine "after

14 initially failing out of both" as a result of "various self

15 taught techniques and determination of will." Id. ¶¶ 15-16.

16 Though it's not entirely clear from the pro se

17 pleadings, Harris appears also to allege that he made two

18 requests for accommodation from the Department of Education, both

19 of which were denied.

20 First, Harris apparently applied for "understanding of

21 the impact of [his] disabilities." Id. ¶ 22. Harris says, in

22 this regard, that "he could not have a fair medical license

23 restoration hearing . . . without reasonable accommodation of

24 understanding of LD & ADHD and it[]s past behavioral impact," id.

25 ¶ 25, and similarly that "[w]ithout understanding [the] impact of

26 [Harris's] impairment [the state officials] can not make a proper

9

1 evaluation . . . of [his] rehabilitation," id. ¶ 37. Harris's

2 application for "understanding" relates to his demand for

3 reinstatement of his license.

4 Second, Harris says, he made and was denied a request

5 to read a written "explanation" before the Committee on the

6 Professions because his oral explanation before the Peer

7 Committee was thought by the Peer Committee to be "unfocused" and

8 "not clearly presented." Id. ¶¶ 43-44. He "thought it would be

9 more organized and clearly presented" to do it in writing. Id.

10 ¶ 44. This sought-for accommodation relates to whether he

11 received an adequate hearing.

12 The amended complaint also contests the judgment of the

13 Committee regarding the impact of Harris's alleged disability, in

14 part on the ground that the agency lacked expert testimony on the

15 subject, and in part because it failed to adequately

16 "acknowledge" evidence of his disability. Id. ¶¶ 153-54. The

17 amended complaint asserts this as a separate basis for relief.

18 Included in the amended complaint, too, is much

19 discussion in mitigation or denial of the actions for which

20 Harris's license was revoked, all of which is "not presented for

21 re[]litigation" but "to illustrate an understand[ing] [i.e., on

22 Harris's part] of the past issues and to prevent [their]

23 reoccurrence in the future ([i.e.,] rehabilitation)." Id. ¶ 63.

24 The district court granted the defendants' motion to

25 dismiss the amended complaint. Harris v. Mills, 478 F. Supp. 2d

26 544 (S.D.N.Y. 2007) ("Harris III"). Harris's motion to

10

1 reconsider that decision, in part in light of his withdrawal of a

2 claim for damages relief, was denied by endorsed order.

3 Harris, represented by counsel, appeals.

4 DISCUSSION

5 I. Standard of Review

6 We review de novo the grant of a motion to dismiss for

7 failure to state a claim upon which relief can be granted under

8 Federal Rule of Civil Procedure 12(b)(6). City of New York v.

9 Beretta U.S.A. Corp., 524 F.3d 384, 392 (2d Cir. 2008), cert.

10 denied, 129 S. Ct. 1579 (2009). We consider the legal

11 sufficiency of the complaint, taking its factual allegations to

12 be true and drawing all reasonable inferences in the plaintiff's

13 favor. See id.

14 In accordance with the Supreme Court's decision Bell

15 Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), we apply a

16 "plausibility standard," which is guided by "[t]wo working

17 principles," Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

18 First, although "a court must accept as true all of the

19 allegations contained in a complaint," that "tenet" "is

20 inapplicable to legal conclusions" and "[t]hreadbare recitals of

21 the elements of a cause of action, supported by mere conclusory

22 statements, do not suffice." Id. "Second, only a complaint that

23 states a plausible claim for relief survives a motion to dismiss"

24 and "[d]etermining whether a complaint states a plausible claim

25 for relief will . . . be a context-specific task that requires

26 the reviewing court to draw on its judicial experience and common

11

1 sense." Id. at 1950. Even after Twombly, though, we remain

2 obligated to construe a pro se complaint liberally. See Erickson

3 v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (per

4 curiam); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191

5 (2d Cir. 2008); Boykin v. KeyCorp, 521 F.3d 202, 213-14, 216 (2d

6 Cir. 2008).

7 II. The Accommodation Claims

8 The district court concluded that "the ADA does

9 not . . . provide for individual liability, either in the

10 individual's official or personal capacity." Harris III, 478 F.

11 Supp. 2d at 547. It reached the same conclusion with respect to

12 the Rehabilitation Act. Id. at 547-48 ("Because claims under the

13 Rehabilitation Act may not be brought against individuals, either

14 in their personal or official capacity, Harris's Rehabilitation

15 Act claim must also be dismissed."). The district court also

16 dismissed the Rehabilitation Act claim on the ground that fails

17 to state a claim upon which relief can be granted. See id. at

18 548.

19 A. Individual Liability

20 As the defendants concede, the district court

21 incorrectly concluded that claims under Title II of the ADA and

22 the Rehabilitation Act cannot be asserted against individuals in

23 their official capacity. In Henrietta D. v. Bloomberg, 331 F.3d

24 261 (2d Cir. 2003), cert. denied, 541 U.S. 936 (2004), we wrote:

25 We . . . cannot embrace the state defendant's

26 statutory claim that an individual sued in

27 his or her official capacity under the

It appears Harris intended to amend the complaint further 4

to limit his request to injunctive relief only. Four days after

the district court's dismissal of the amended complaint, Harris

sent a communication to the court requesting "[r]econsideration"

of the court's "[d]ecision" for six reasons that had previously

been argued, but also for a seventh: "Drop money damages." See

Endorsed letter of Monroe Harris entitled "Reconsideration," Mar.

26, 2007 (Docket Entry 21). By endorsement, the district court

construed the letter as a "request [for] reconsideration," and

denied the request because the letter "provides no controlling

facts or law that the court overlooked in its prior rulings on

this matter that would alter the outcome of the Court's

decision." Id. But the part of the application that sought to

"[d]rop money damages" was, strictly speaking, not a motion that

"renew[ed] arguments previously made," and therefore did not

12

1 doctrine of Ex parte Young is not a "public

2 entity" subject to liability under the ADA,

3 42 U.S.C. § 12132. The real party in

4 interest in an official-capacity suit is the

5 government entity. As a result, it is

6 irrelevant whether the ADA would impose

7 individual liability on the officer sued;

8 since the suit is in effect against the

9 "public entity," it falls within the express

10 authorization of the ADA.

11 Id. at 288 (citation omitted). In other words, we concluded that

12 Title II and Rehabilitation Act suits for prospective injunctive

13 relief may, under the doctrine established by Ex parte Young, 209

14 U.S. 123 (1908), proceed against individual officers in their

15 official capacity, see Henrietta D., 331 F.3d at 289 ("[T]here is

16 no basis for holding that the ADA or Rehabilitation Act intended

17 to create the kind of comprehensive enforcement scheme that would

18 preclude prospective injunctive relief against a state official

19 in her official capacity."). Insofar as the amended complaint

20 seeks prospective injunctive relief, then, it may be asserted

21 against the individual defendants here in their official

22 capacities. 4

"bring up for review the underlying order." "R" Best Produce,

Inc. v. DiSapio, 540 F.3d 115, 121 (2d Cir. 2008). Liberally

construed, it was an attempt to withdraw a claim for relief

pursuant to Federal Rule of Civil Procedure 15(a)(2). Whether

the district court should have granted that application is not at

issue on this appeal.

13

1 The district court relied upon two cases to conclude

2 otherwise: Lennon v. NYC, 392 F. Supp. 2d 630, 640 (S.D.N.Y.

3 2005), which noted prior district court rulings that individually

4 named defendants cannot be held personally liable under the ADA,

5 and Hartnett v. Fielding Graduate Institute, 400 F. Supp. 2d 570,

6 575 (S.D.N.Y. 2005), aff'd in part and rev'd in part on other

7 grounds, 198 Fed. Appx. 89 (2d Cir. 2006) (summary order), which

8 quoted a pre-Henrietta D. case, Menes v. CUNY, 92 F. Supp. 2d

9 294, 306 (S.D.N.Y. 2000), for the proposition that individuals

10 cannot "'be named in their official or representative capacities

11 as defendants in ADA or Rehabilitation Act suits.'" Harris III,

12 478 F. Supp. 2d at 547. Insofar as Hartnett, Menes, and another

13 post-Henrietta D. case that was relied upon by Lennon, Gentile v.

14 Town of Huntington, 288 F. Supp. 2d 316, 322 (E.D.N.Y. 2003),

15 hold that individual defendants cannot be sued in their official

16 capacities for prospective injunctive relief under the ADA or the

17 Rehabilitation Act, those holdings are contrary to Henrietta D.,

18 by which we are of course bound.

19 B. Legal Sufficiency

20 We conclude, nonetheless, that the amended complaint

21 fails to state accommodation claims upon which the injunctive

The differences among the cases referred to do not affect 5

the analysis here.

14

1 relief Harris seeks can be granted, even under the liberal

2 standard of review for pro se pleadings.

3 1. Applicable Legal Standards. Title II of the ADA

4 "proscribes discrimination against the disabled in access to

5 public services." Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d

6 79, 84-85 (2d Cir.), corrected, 511 F.3d 238 (2d Cir. 2004). It

7 provides that "no qualified individual with a disability shall,

8 by reason of such disability, be excluded from participation in

9 or be denied the benefits of the services, programs, or

10 activities of a public entity, or be subjected to discrimination

11 by any such entity." 42 U.S.C. § 12132. To assure that those

12 requirements are met, "reasonable accommodation" may have to be

13 provided to the qualified individual. See Henrietta D., 331 F.3d

14 at 273-74. Similarly, the Rehabilitation Act requires that

15 specified "otherwise qualified" disabled individuals receive

16 reasonable accommodations from programs receiving federal

17 financial assistance. 29 U.S.C. § 794(a); Alexander v. Choate,

18 469 U.S. 287, 301 (1985); Henrietta D., 331 F.3d at 273.

19 "[I]n most cases," the standards are the same for 5

20 actions under both statutes. Powell, 364 F.3d at 85.

21 In order for a plaintiff to establish a prima

22 facie violation under these Acts, she must

23 demonstrate (1) that she is a qualified

24 individual with a disability; (2) that the

25 defendants are subject to one of the Acts;

26 and (3) that she was denied the opportunity

27 to participate in or benefit from defendants'

15

1 services, programs, or activities, or was

2 otherwise discriminated against by

3 defendants, by reason of her disability.

4

5 Id. (internal quotation marks and brackets omitted).

6 2. The Standards Applied. Harris makes two

7 accommodation claims. The first is that the Education Department

8 wrongly denied him an "understanding of the impact of [his]

9 disabilities." Am. Compl. ¶ 22. Without such understanding, he

10 alleges, the reinstatement hearing was not "fair," id. ¶ 25, in

11 that the Department could undertake no "proper" assessment of his

12 "rehabilitation," id. ¶ 37. Even read liberally, Harris's

13 complaint does not, however, identify how Harris's disabilities

14 affected the behavior that caused the revocation of his license,

15 nor how those disabilities could be accommodated to reform this

16 behavior. Harris thus alleges, at core, that if only the

17 defendants would "understand" the impact of his disabilities,

18 they would be willing to overlook the actions that caused him to

19 lose his license in the first place. Generally construed, this

20 allegation amounts only to the contention that Harris's medical

21 licensing qualifications should be relaxed in light of his

22 disability.

23 This is not a reasonable accommodation claim. Title II

24 of the ADA requires the accommodation of disabled persons who are

25 entitled to a public benefit "whether or not [they are] given an

26 accommodation." Powell, 364 F.3d at 84-85; see also 42 U.S.C.

27 § 12131 ("The term 'qualified individual with a disability' means

28 an individual with a disability who, with or without reasonable

16

1 modifications to rules, policies, or practices . . . meets the

2 essential eligibility requirements for [the relevant benefit]."

3 (emphasis added)). The paradigmatic example is a person who must

4 use a wheelchair to access the courts -- a citizen is entitled to

5 access the court system irrespective of whether he or she can

6 walk. See Tennessee v. Lane, 541 U.S. 509 (2004). Here, by

7 contrast, Harris would be entitled to a reinstatement of his

8 license only if his disability is accommodated by the state's

9 relaxation of its license qualifications. Title II of the ADA

10 requires no such diminishment of otherwise applicable standards.

11 See Felix v. N.Y. City Transit Auth., 324 F.3d 102, 107 (2d Cir.

12 2003) ("The ADA mandates reasonable accommodation of people with

13 disabilities in order to put them on an even playing field with

14 the non-disabled; it does not authorize a preference for disabled

15 people generally.").

16 Similarly with respect to the Rehabilitation Act claim,

17 because Harris does not contest the Board's view that his past

18 acts of fraud and improper practices disentitle him to the

19 license, but asks only for the state's "understanding" of the

20 reasons why he committed those actions, he cannot demonstrate

21 that he is "otherwise qualified" for a medical license. Harris's

22 first accommodation claim is therefore legally insufficient under

23 both statutes.

24 Harris's second accommodation claim arises out of the

25 denial of his request for permission to read to the Committee on

26 the Professions a written explanation so his case "would be more

17

1 organized and clearly presented." Am. Compl. ¶ 44. The district

2 court concluded that Harris "did not make clear how this denial

3 related to the final determination not to restore his medical

4 license." Harris III, 478 F. Supp. 2d at 548.

5 The problem with this conclusion is that it assumes

6 that Harris seeks the written-presentation accommodation in order

7 to obtain his license to practice. But under a liberal reading

8 of the amended complaint, Harris asks only for reasonable access

9 to a hearing in which to make his case for reinstatement. The

10 relation of the state's denial and the benefit Harris seeks -- a

11 fair hearing -- is clear under this reading. Moreover, there is

12 no dispute that Harris was otherwise entitled to such a hearing.

13 Even so construed, however, Harris's claim is

14 insufficient. As an initial matter, there is no allegation

15 (beyond ipse dixit) that Harris was denied the opportunity to

16 read from a written statement "by reason" of his disability, let

17 alone "solely by reason" of his disability, as the Rehabilitation

18 Act requires. 29 U.S.C. § 794; accord Powell, 364 F.3d at 85;

19 Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998). Moreover, it is

20 not clear how such an accommodation would have helped Harris.

21 According to the amended complaint, Harris has "difficulty with

22 comprehending the written word" and "a related problem with

23 written expression." Am. Compl. ¶ 11. If those are the

24 disabilities with which Harris is afflicted, allowing him to

25 prepare and read a written statement would not have accommodated

26 his disabilities; it would have frustrated them.

18

1 We reject Harris's remaining arguments. He contends

2 that the Committee failed in its "responsibility" to initiate "an

3 interactive process" with him to discover an accommodation that

4 would help him obtain his medical license. Pl.'s Br. 20. The

5 ADA "envisions an 'interactive process' by which employers and

6 employees work together to assess whether an employee's

7 disability can be reasonably accommodated." Jackan v. N.Y. State

8 Dep't of Labor, 205 F.3d 562, 566 (2d Cir.), cert. denied, 531

9 U.S. 931 (2000); see 29 C.F.R. § 1630.2 ("To determine the

10 appropriate reasonable accommodation it may be necessary for the

11 covered entity to initiate an informal, interactive process with

12 the qualified individual with a disability in need of the

13 accommodation."); accord Lovejoy-Wilson v. NOCO Motor Fuel, Inc.,

14 263 F.3d 208, 219 (2d Cir. 2001). This, however, does not help

15 Harris; he received hearings in which he was permitted to make

16 his case for reissuance of his license. "There [is] no need for

17 injunctive relief" if Harris was "already being reasonably

18 accommodated." Henrietta D., 331 F.3d at 282.

19 Harris also argues that the Committee should have

20 considered more documentary evidence on his behalf and wrongly

21 found his claims of disability implausible. But he fails to

22 explain how these arguments relate to his accommodation claim.

23 III. The Due Process Claim

24 The district court dismissed Harris's due process claim

25 on the ground that Article 78 provided an adequate post-

26 deprivation hearing for the denial of his petition to reinstate

19

1 his license. Harris III, 478 F. Supp. 2d at 549. The district

2 court concluded that "Harris was certainly familiar with Article

3 78 proceedings, having availed himself of that remedy after his

4 medical license was initially revoked," id., and that "[b]ecause

5 New York provides a meaningful post-deprivation remedy and Harris

6 does not indicate that he pursued this remedy, "his due process

7 claim must be dismissed," id. at 549-50.

8 Harris argues that the defendants' failure to consider

9 evidence of his character and disabilities wrongfully deprived

10 him of a constitutionally protected interest. In addition, he

11 argues, the defendants baselessly "assumed that Harris was not

12 disabled." Pl.'s Reply Br. 10. Harris characterizes these

13 arguments as challenges to the "state procedural scheme" as a

14 whole, not merely a discrete set of unauthorized acts, id. at 11,

15 and therefore contends that he was entitled to a pre-deprivation

16 hearing under Zinermon v. Burch, 494 U.S. 113 (1990). We need

17 not grapple with whether any of the defendants, by virtue of

18 their decision-making authority or role, would be unable to avail

19 themselves of the principle that "[w]hen the state conduct in

20 question is random and unauthorized, the state satisfies

21 procedural due process requirements so long as it provides

22 meaningful post-deprivation remedy." Rivera-Powell v. New York

23 City Bd. of Elections, 470 F.3d 458, 465 (2d Cir. 2006). Harris

24 was given notice and an opportunity to be heard before his

25 petition for reinstatement was denied. That, coupled with the

20

1 Article 78 post-deprivation remedy, is enough to satisfy due

2 process. See id. at 466-67.

3 Finally, Harris's amended complaint states as a

4 separate cause of action that the defendants' decisions were

5 "[a]rbitrary and capricious" inasmuch as the defendants failed to

6 follow their own procedural rules. Am. Compl. 21. Insofar as

7 this is intended to be a stand-alone legal claim based solely on

8 violations of state regulations, it is not actionable in federal

9 court. See Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 888 (2d

10 Cir. 1987) ("Section 1983 is not a means for litigating in a

11 federal forum whether a state or local administrative decision

12 was arbitrary and capricious."). It therefore states no claim

13 upon which relief can be granted.



* * *



See: http://www.ca2.uscourts.gov/decisions/isysquery/df48023c-08f2-46d1-a635-17d2f4515a48/3/doc/07-2283-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/df48023c-08f2-46d1-a635-17d2f4515a48/3/hilite/

For the foregoing reasons, the judgment of the district

court is affirmed.