Davidson v. Office of Court Administration et al, No. 1:2022cv08936 - Document 76 (S.D.N.Y. 2024)
Court Description: ORDER denying without prejudice 73 Motion re: 73 MOTION MOTION FOR THE JOHN SULLIVAN; APPOINTMENT OF ALIA RAZZAQ; HON. LOUIS STANTON TO BE SPECIAL MASTER TRACEY FERDINAND; PER FRCP RULE 53., 75 MOTION MOTION FOR JOHN SULLIVAN; JUDICI AL NOTICE ALIA RAZZAQ; RE APPOINTMENT OF HON. LOUIS STANTON TRACEY FERDINAND; TO BE SPECIAL MASTER NORMA JENNINGS; PER FRCP RULE 53. ; denying without prejudice 75 Motion re: 73 MOTION MOTION FOR THE JOHN SULLIVAN; APPOINTMENT OF ALIA RAZZ AQ; HON. LOUIS STANTON TO BE SPECIAL MASTER TRACEY FERDINAND; PER FRCP RULE 53., 75 MOTION MOTION FOR JOHN SULLIVAN; JUDICIAL NOTICE ALIA RAZZAQ; RE APPOINTMENT OF HON. LOUIS STANTON TRACEY FERDINAND; TO BE SPECIAL MASTER NORMA JENNINGS; PER FRC P RULE 53. Plaintiff's motion to appoint a special maser is denied without prejudice. At this juncture, the Court does not deem it necessary to appoint a special master. Plaintiff should focus on filing his amended complaint, which is due by May 31, 2024. The Clerk of Court is respectfully directed to terminate the motions at ECF Nos. 73 and 75. (Signed by Magistrate Judge Valerie Figueredo on 5/2/2024) (ate)
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UNITED STATES DISTRICT COURT Davidson v. Office ofDISTRICT Court Administration al SOUTHERN OF NEWetYORK Doc. 7 —----------------------------------------x 5-2-2024 RONALD DAVIDSON, Plaintiff, -- against -OFFICE OF COURT ADMINISTRATION; HON. JOSEPH ZAYAS; HON. LAWRENCE MARKS; JOHN DOE1; JOHN DOE2; JOHN DOE3; JOHN SULLIVAN; ALIA RAZZAQ; TRACEY FERDINAND; NORMA JENNINGS; TRAVIS ARRINDEL; VANESSA FANG; FRANCES ORTIZ; HON. THOMAS DINAPOLI; KIMBERLY HILL ; HON. DAWN PINNOCK; 1:22-cv-08936 -PGG-VF Plaintiff's motion to appoint a special maser is denied without prejudice. At this juncture, the Court does not deem it necessary to appoint a special master. Plaintiff should focus on filing his amended complaint, which is due by May 31, 2024. The Clerk of Court is respectfully directed to terminate the motions at ECF Nos. 73 and 75. MOTION FOR THE APPOINTMENT OF HON. LOUIS STANTON TO BE SPECIAL MASTER PER FRCP RULE 53 Oral argument and expedited hearing requested PATRICK KEHOE, Defendants —----------------------------------------x 1. This is the Plaintiff's second attempt to seek the appointment of a Special Master because of an "exceptional condition" per Federal Rules of Civil Procedure (FRCP) Rule 53(a)(1)(B)(i). — see Plyler v. Doe, 47 1 Dockets.Justia.com US 702, 216 (1982) ["equal protection implicates a presumptively invidious disadvantage affecting "the exercise of a 'fundamental right'"]. — see US Constitution, Article 6, Amendments 1 and 14; and see 75 FR 56164, 56225 (September 15, 2010) re 28 CFR part 35, "Nondiscrimination on the Basis of Disability in State and Local Government Services" 28 CFR §35.160 "The US Department of Justice (DOJ) interprets §35.160 to require effective communication in courts … [and] the appropriateness of particular auxiliary aids and services may vary as a situation changes, the Department strongly encourages public entities to do a communication assessment of the individual with a disability when the need for auxiliary aids and services is first identified, and to reassess communication effectiveness regularly throughout the communication …. A public entity has a continuing obligation to assess the auxiliary aids and services it is providing, and should consult with individuals with disabilities on a continuing basis to assess what measures are required to ensure effective communication." [emphasis added with italics and underlining] — see bottom of middle column at 75 FR 56225 [PDF p. 62 of 73] https://www.govinfo.gov/content/pkg/FR-2010-09-15/pdf/2010-2 1821.pdf 2 2. This is the Plaintiff's first application for an Order authorizing the Special Master to have unlimited discretion about ex parte communication concerning issues having to do with the Plaintiff's age, disabilities, and requests for interactive processes for identifying meaningful accommodations and modifications of procedures (ECF Nos. 28, 39 and 67); and the functional purposes of the Plaintiff's several requests have been emphasized with redundant repetition when (a) the 93rd Congress (January 3, 1971 – January 3, 1973) enacted the Rehabilitation Act of 1973 (RA), Pub. L. 93–112, 87 Stat. 355 (b) the 94th Congress (January 3, 1975 – January 3, 1977) enacted the Age Discrimination Act of 1975, Pub. L. 94–135, 89 Stat. 713 (c) the 95th Congress (January 3, 1977 – January 3, 1979) enacted the Rehabilitation Act Amendments of 1978, Pub. L. 95-602, 92 Stat. 2995 (d) the 99th Congress (January 3, 1985 – January 3, 1987) enacted the Rehabilitation Act Amendments of 1986, Pub. L. 99-506, 100 Stat. 1807 (e) the 100th Congress (January 3, 1987 – January 3, 1989) enacted the Civil Rights Restoration Act of 1987 (CRRA), Pub. L. 100-259, 102 Stat. 28 3 (f) the 101st Congress (January 3, 1989 – January 3, 1991) enacted the Americans with Disabilities Act of 1990 (ADA), Pub. L. 101-336, 104 Stat. 327 (g) the 104th Congress (January 3, 1995 – January 3, 1997) enacted the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. 104–191, 100 Stat 1936 (h) the 110th Congress (January 3, 2007 – January 3, 2009) enacted the ADA Amendments Act of 2008 (ADAAA), Pub L. 110-325, 122 Stat. 355 (i) the 111th Congress (January 3, 2009 – January 3, 2011) enacted the Patient Protection and Affordable Care Act of 2010 (ACA), Pub. L. 111-148, 124 Stat. 109–1025 3. The Plaintiff's request for the appointment of a Special Master is consistent with the enacted will of serial Congresses and the assent of the President of the United States; and it is consistent with the structural design of regulations implementing related Acts of Congress chronologically listed ante in paragraph 2; and it is consistent with prototype regulations promulgated by the US Department of Health, Education and Welfare (HEW) which have been the law of the land since 1978; and it is consistent with subsequent statutes, executive orders and regulations which mirror congruent baselines; and it is consistent 4 with words that are published in the Federal Register for all to read, including someone with cognitive disabilities, e.g., (a) 43 FR 2132 (Jan 13, 1978) re 45 CFR part 85, Implementation of Executive Order 11914, Nondiscrimination on the Basis of Handicap in Federally Assisted Programs, Coordination of Federal Agency Enforcement of Section 504 of the Rehabilitation Act of 1973 [PDF p. 19 of 35] https://archives.federalregister.gov/issue_slice/1978/1/13/2102-2 136.pdf#page=19, e.g., (i) 45 CFR §85.51(b)(3) "A recipient may not, directly or through contractual-or other arrangements, utilize criteria or methods of administration (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program with respect to handicapped persons, or (iii) that perpetúate the discrimination of another recipient if both recipients are subject to common administrative control or are agencies of the same state." — see bottom of left column at 43 FR 2138 re General prohibitions against discrimination [PDF p. 25 of 35] 5 https://archives.federalregister.gov/issue_slice/1978/1/13/21 02-2136.pdf#page=25 (ii) 45 CFR §85.53 "A recipient shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program. — see middle of right column at 43 FR 2138 re Employment, Reasonable accommodation [PDF p. 25 of 35] https://archives.federalregister.gov/issue_slice/1978/1/13/21 02-2136.pdf#page=25 (iii) 45 CFR §85.56 "No qualified handicapped person shall, because a recipient’s facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity that receives or benefits from federal financial assistance."— see bottom of right column 43 FR 2138 re Program Accessibility [PDF p. 25 of 35] https://archives.federalregister.gov/issue_slice/1978/1/13/21 02-2136.pdf#page=253 6 (b) 45 FR 37620 (June 3, 1980) re 28 CFR part 42, "Nondiscrimination Based on Handicap in Federally Assisted Programs; Implementation of Section 504 of the Rehabilitation Act of 1973 and Executive Order 11914, Final Rule" [PDF p. 15 of 59] https://archives.federalregister.gov/issue_slice/1980/6/3/37576-3 7634.pdf#page=15; and see 45 FR 37620, 37630 (June 3, 1980) "Where the courts provide specialized assistance with respect to court proceedings, the courts are required to insure that handicapped persons are able to participate in such assistance on an equal basis with nonhandicapped persons … for all phases of the preparation and presentation of the [Plaintiff]’s case." [emphasis added with italics and underlining] — see top of right column at 45 FR 37630 [PDF p. 25 of 59] https://archives.federalregister.gov/issue_slice/1980/6/3/375 76-37634.pdf#page=25 (c) 45 FR 72995 (Nov. 4, 1980), US Exec. Order 12250 (EO 12250), ''Leadership and Co-ordination of Nondiscrimination Laws'' (d) 46 FR 40686 (August 11, 1981) re 28 CFR part 41 and 45 CFR part 85, Redesignation and Transfer of Section 504 Guidelines [PDF p. 9 of 10] 7 https://archives.federalregister.gov/issue_slice/1981/8/11/4067840687.pdf#page=9 (i) 28 CFR §41.51(b)(3), same words as in 45 CFR §85.51(b)(3) re General prohibitions against discrimination — see middle of right column at 46 FR 40686 ["The rule will retitle the present guidelines at 45 CFR Part 85, transfer them to 28 CFR Part 41, and make necessary nomenclature changes. Publication of this rule as a proposal for public comment is unnecessary since it is solely a redesignation of existing regulations."] [PDF p. 9 of 10] https://archives.federalregister.gov/issue_slice/1981/8/11/40 678-40687.pdf#page=9 (ii) 28 CFR §41.53, same words as in 45 CFR §85.53 re Employment, Reasonable accommodation — see Id. (iii) 28 CFR §41.56, same word as in 45 CFR §85.56 re Program Accessibility — see Id. (e) 49 FR 35724 (Sept. 11, 1984) re 28 CFR part 39, Final Rule, Section-by-Section Analysis and Response To Comments [PDF p. 122 of 144] https://www.govinfo.gov/content/pkg/FR-1984-09-11/pdf/FR-198 4-09-11.pdf#page=122 8 (f) 56 FR 35594 (July 26, 1991) re 28 CFR part 35, Nondiscrimination on the Basis of Disability in State and Local Government Services [PDF p. 402 of 516] https://www.govinfo.gov/content/pkg/FR-1991-07-26/pdf/FR-199 1-07-26.pdf#page=402 (g) 75 FR 56164 (September 15, 2010) re 28 CFR part 35 ["This final rule revises the regulation of the Department of Justice (Department) that implements title II of the Americans with Disabilities Act (ADA), relating to non-discrimination on the basis of disability in State and local government services … to update or amend certain provisions of the title II regulation so that they comport with the Department’s legal and practical experiences in enforcing the ADA since 1991."] [emphasis added with italics and underlining] — see top of right column at 75 FR 56164 [PDF p. 1 of 73] https://www.govinfo.gov/content/pkg/FR-2010-09-15/pdf/2010-2 1821.pdf (i) 75 FR 56164, 56224 (September 15, 2010) (1) "… [T]he 'primary consideration' obligation set out at §35.160(b)(2) … [and] in the preamble to the 1991 title II regulation [is] reaffirmed here: 'The public entity 9 shall honor the choice [of the individual with a disability] unless it can demonstrate that another effective means of communication exists or that use of the means chosen would not be required under §35.164. Deference to the request of the individual with a disability is desirable because of the range of disabilities, the variety of auxiliary aids and services, and different circumstances requiring effective communication.’' 28 CFR part 35, app. A at 580 (2009). [emphasis added with italics and underlining] — see middle of left column at 75 FR 56223 [PDF p. 60 of 73] https://www.govinfo.gov/content/pkg/FR-2010-09-15/p df/2010-21821.pdf (2) "The first sentence in §35.160(b)(2) codifies the axiom that the type of auxiliary aid or service necessary to ensure effective communication will vary with the situation, and provides factors for consideration in making the determination, including the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. Inclusion of this language under title II is 10 consistent with longstanding policy in this area. See, e.g., The Americans with Disabilities Act Title II Technical Assistance Manual Covering State and Local Government Programs and Services, section II–7.1000 [emphasis added with italics and underlining] — see bottom of left column at 75 FR 56223 [PDF p. 60 of 73] https://www.govinfo.gov/content/pkg/FR-2010-09-15/p df/2010-21821.pdf (3) "... [T]he Department has concluded that public entities sometimes misunderstand the scope of their obligations under the statute and the regulation. Section 35.160 in the final rule codifies the Department’s long-standing policies in this area and includes provisions that reflect technological advances in the area of auxiliary aids and services." [emphasis added with italics and underlining] — see bottom of left column at 75 FR 56223 [PDF p. 60 of 73] https://www.govinfo.gov/content/pkg/FR-2010-09-15/p df/2010-21821.pdf (ii) 75 FR 56164, 56225 (September 15, 2010) "Many commenters urged the Department to stress the obligation of State and local courts to provide effective 11 communication …. The Department cautions public entities that without appropriate auxiliary aids and services, such individuals are denied an opportunity to participate fully in the judicial process, and denied benefits of the judicial system that are available to others. " … The general nondiscrimination provision in §35.130(a) provides that no individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity. The Department consistently interprets this provision and §35.160 to require effective communication in courts …. The Department has developed a variety of technical assistance and guidance documents on the requirements for title II entities to provide effective communication; those materials are available on the Department Web site at: http:// www.ada.gov "…[T]he appropriateness of particular auxiliary aids and services may vary as a situation changes, the Department strongly encourages public entities to do a communication assessment of the individual with a disability when the need 12 for auxiliary aids and services is first identified, and to reassess communication effectiveness regularly throughout the communication …. A public entity has a continuing obligation to assess the auxiliary aids and services it is providing, and should consult with individuals with disabilities on a continuing basis to assess what measures are required to ensure effective communication." [emphasis added with italics and underlining] — see 75 FR 56225 [PDF p. 62 of 73] https://www.govinfo.gov/content/pkg/FR-2010-09-15/pdf/20 10-21821.pdf 4. This Court's error in denying the Plaintiff's initial request for the appointment of a Special Master (ECF No. 39) anticipated that this second motion could be submitted: ["At this juncture, the Court does not deem it necessary to appoint a special master. Plaintiff’s motion to appoint a special master is therefore denied without prejudice. Plaintiff may renew his request at a later date should he feel that the Court is not heeding his requests, or should other circumstances arise."] — see 75 FR 56164, 56225 (September 15, 2010), supra; and see attached # (1) Motion Exhibit 1: Notice of Eviction – 14 Days, Marshal's Docket No. 15510 Residential, April 25, 2024 13 5. If his health permits and he agrees to accept, US District Judge Louis Stanton is suggested for appointment per FRCP Rule 53(b)(1); and the Plaintiff knows of no reason which would disqualify this senior judge per 28 USC §455. 6. The Plaintiff's need for a Special Master is made urgent by "extreme hardship" which has been defined by the New York State (NYS) legislature in the Housing Stability and Tenant Protection Act of 2019 (HSTPA), also known as the Tenant Protection Act (TPA); and in part, this legislation amended Section 753 of the NY Real Property Actions and Proceedings Law (RPAPL). 14 … the court, on application of the occupant, may stay the issu15 ance of a warrant and also stay any execution to collect the costs of 16 the proceeding for a period of not more than [six months] one year, if 17 it appears that the premises are used for dwelling purposes; that the 18 application is made in good faith; that the applicant cannot within the 19 neighborhood secure suitable premises similar to those occupied by [him] 14 20 the applicant and that [he] the applicant made due and reasonable 21 efforts to secure such other premises, or that by reason of other facts 22 it would occasion extreme hardship to [him or his] the applicant or the 23 applicant's family if the stay were not granted. In determining whether 24 refusal to grant a stay would occasion extreme hardship, the court shall 25 consider serious ill health, significant exacerbation of an ongoing 26 condition, a child's enrollment in a local school, and any other exten27 uating life circumstances affecting the ability of the applicant or the 28 applicant's family to relocate and maintain quality of life. The court 29 shall consider any substantial hardship the stay may impose on the land30 lord in determining whether to grant the stay or in setting 15 the length 31 or other terms of the stay …." [new words in the law are underscored and deleted old law is shown with strike-out enclosed in brackets] -- see HSTPA or TPA amending RPAPL §753 at p. 53 of 74 https://legislation.nysenate.gov/pdf/bills/2019/S6458; and see Crowder v. Kitagawa, 81 F.3d 1480, 1504 (9th Cir. 1996), citing Alexander v. Choate, 469 U.S. 287, 302 (1985) ["In Choate, the Court concluded that Congress intended to protect disabled persons from discrimination arising out of both discriminatory animus and 'thoughtlessness,' 'indifference,' or 'benign neglect' … [and] whether disabled persons were denied 'meaningful access' to state-provided services"]; and see Crowder v. Kitagawa, 842 F. Supp. 1257 (D. Haw. 1994), citing Plyler, supra; and compare Cleburne v. Cleburne Living Center, Inc., 473 US 432, 440 (1985). [rational relationship to a legitimate government interest] 7. Within the context defined by the US Department of Justice (DOJ) at 45 FR 37620, 37630 (June 3, 1980), some of the new words added to RPAPL §753 are functional restatements of the RA; the ADA; the NYS Executive Law (Exec L), Article 15, Human Rights Law (NY HRL), Exec L §§290–301; NYC Local Law No. 49 (1977), Human Rights Law (NYC HRL), NYC Administrative Code (NYC Code), Title 8, Civil Rights, NYC 16 Code §§8.101-8.703; the NYS Uniform Commercial Code (UCC), Uniform Commercial Code (UCC), Article 2, Part 3: General Obligation and Construction of Contract, UCC §§1.101–13.105; and the national policy prohibiting unlawful discrimination solely on the basis of disability "In determining … extreme hardship, the court shall consider serious ill health, significant exacerbation of an ongoing condition, … and any other extenuating life circumstances affecting the ability [and disability] of [a person with disabilities]." — see RPAPL §753; compare 2 CFR §200.300(a) [Statutory and national policy requirements]; and see top of right column at 45 FR 37620, 37630 (June 3, 1980) re "Court Agencies" [PDF p. 25 of 59] https://archives.federalregister.gov/issue_slice/1980/6/3/37576-3 7634.pdf#page=25 8. Within the context of emphasis by redundant repetition in 45 FR 37620, 37630 (June 3, 1980) and in RPAPL §753 (2019), the precatory and/or hortatory statements of former Acting-Chief Administrative Judge Tamiko Amaker concurrently function as an express warranty statement about the fact of post-pandemic comorbidity factors affecting litigants with disabilities, and this post-pandemic cohort includes the Plaintiff 17 ACTING CHIEF ADMIN. JUDGE AMAKER: 8 … you know, we do our best 9 to keep everyone up-to-date on ADA 10 accommodations, especially post-pandemic. 11 It's something that I personally, you know, 12 have really instructed my judges that we have 13 to listen to individuals' requests for ADA 14 accommodations because if they have some 15 preexisting condition or some comorbidity 16 issue, then we certainly want to hear that 17 and make the necessary accommodation. 18 And in fact immediately post-pandemic 19 I was personally doing it for a court that I 20 was supervising because I wanted to make sure 21 that everyone who needed that accommodation 22 was given that accommodation. So that is 23 something I will certainly stress with our 24 judges." [emphasis added with italics, underlining] — "2-7-23 Joint Legislative Budget Hearing," Testimony of Tamiko Amaker, Acting-Chief Administrative Judge, New York State Office of Court Administration 18 https://nystateassembly.granicus.com/player/clip/7209?view_id= 8&redirect=true&h=db73bb94a29a57022a0242c264904d1e; and see Transcript, p. 99, lines 8-24 https://nyassembly.gov/write/upload/publichearing/001340/transc ript.pdf https://nyassembly.gov/write/upload/publichearing/001340/transc ript.pdf 9. Within a context of emphasis by redundant repetition established by 45 FR 37620, 37630 (June 3, 1980) and RPAPL §753 (2019) and the testimony of Judge Amaker (2023), the Plaintiff is seeking not less than three in-chambers, burden-shifting opportunities to use spoken and written words to communicate with the Special Master in ways that are explained in NYC Local Law No. 59 (2018) ["cooperative dialogue"], NYC Code §8-102, §8-107.28; and this burden-shifting, interactive process of talking and writing is needed in order to (a) to assist this Court's decision-making about post-pandemic comorbidity factors affecting the Plaintiff's "program access" in this US District Court; and (b) to help the Plaintiff figure out a plan and/or template for explaining and suggesting how to mitigate the effects of communication barriers this Court can't or won't understand 19 because of irrebuttable presumptions. — see McDonnell Douglas Corp v. Green, 411 US 792 (1973) [burden shifting]; and see Jacobsen v. NYC Health & Hosps. Corp., 22 N.Y.3d 824 (2014) [interactive process]; and see bottom of left column at 49 FR 35728 ["irrebuttable presumptions that absolutely exclude"] 10. The Plaintiff's request for a Special Master is needed, in part, because the facts and law in this case — complicated by the sequelae of neurological disabilities — compel the Plailntiff to marry FRCP Rule 8(e) with FRCP Rule 53(a)(1)(B)(i); and this specific amalgamation is anticipated in words codified at 42 USC §12134(b), citing 28 CFR part 41 and 28 CFR part 39 in chronological rather than non-numerical order in order to emphasize with redundant repetition that the will of Congress has been enacted to encourage nuanced analysis and to encourage affirmative and prophylactic actions; e.g., (i) 1978. 45 CFR §85.53(b)(3) ante at subparagraph 3(a)(i) (ii) 1980. 28 CFR §41.53(b)(3) ante at subparagraph 3(d)(i) (iii) 1984. 28 CFR §39.130(b)(3): "... may not, directly or through contractual or other arrangements, utilize criteria or methods of administration the purpose or effect of which would … subject qualified handicapped persons to discrimination on the basis of handicap; or … defeat or substantially impair 20 accomplishment of the objectives of a program or activity with respect to handicapped persons"]; and (iv) 1984. 49 FR 35724, 35728 (Sept. 11, 1984) "Subparagraph (b)(3) prohibits the agency from utilizing criteria or methods of administration that deny handicapped persons access to the agency’s programs or activities. The phrase “criteria or methods of administration” refers to official written … policies and to the actual practices …. This subparagraph prohibits both blatantly exclusionary policies or practices and nonessential policies and practices that are neutral on their face, but deny handicapped persons an effective opportunity to participate"] [emphasis added with italics and underlining] — see bottom of middle column at 49 FR 35728 [PDF p. 126 of 144] https://www.govinfo.gov/content/pkg/FR-1984-09-11/pdf/FR-198 4-09-11.pdf#page=126; and see 28 CFR §42.502(c)(1) [“not obviated by or otherwise affected by the existence of any … requirement that, on the basis of disability, imposes … limits upon the eligibility of qualified individuals with disabilities to receive services.”] [emphasis added with italics and underlining]] 21 11. The emphasis with redundant repetition in the prototype regulatory template developed by HEW encompasses the structural redundancies that are neither plain nor simple because discrimination defined as unlawful is often neither plan nor simple; and the mirrored enforcement schemes of 80+ federal agencies — including regulations of the US Department of Health and Human Services (HHS), the US Department of Housing and Urban Development (HUD), the US Department of Justice (DOJ) and the Office of Management and Budget (OMB) — are individually and collectively probative in this case. 12. The underlying fabric of law in this case is awkward, unwieldy; and it's a fact that the Plaintiff is clumsy with words; nevertheless, it is also a fact that this is what is — an interwoven fabric of law which serial Congresses and serial NY legislatures and serial NYC Councils have woven together in prescient anticipation of precisely this kind of "exceptional condition" per FRCP Rule 53(a)(1)(B)(i) 13. The warp and weft of fact and law now acknowledged to be within this Court's jurisdiction require this Court and the Special Master to think about how the function of FRCP Rule 8(e) ["... construed so as to do justice"] subordinates FRCP Rule 8(a) ["short plain statement"] and 22 FRCP Rule 8(d) ["simple, concise, and direct"] — see ante at paragraphs 2 and 10; and see 49 FR 35724, 35728 (Sept. 11, 1984) "Section 39.130 is an adaptation of the corresponding section of the section 504 coordination regulation for programs or activities receiving Federal financial assistance (28 CFR §41.51). This regulatory provision attracted relatively few public comments and has not been changed from the proposed rule. "Paragraph (a) restates the nondiscrimination mandate of section 504. The remaining paragraphs in §39.130 establish the general principles for analyzing whether any particular action of the agency violates this mandate. These principles serve as the analytical foundation for the remaining sections of the regulation. If the agency violates a provision in any of the subsequent sections, it will also violate one of the general prohibitions found in §39.130. When there is no applicable subsequent provision, the general prohibitions stated in this section apply. "Paragraph (b) prohibits overt denials of equal treatment of handicapped persons. The agency may not refuse to provide a handicapped person with an equal opportunity to participate in or benefit from its program simply because the person is handicapped. Such blatantly exclusionary practices often result 23 from the use of irrebuttable presumptions that absolutely exclude certain classes of disabled persons (e.g epileptics, hearing-impaired persons, persons with heart ailments) from participation in programs-or activities without regard to an individual’s actual ability to participate." — see middle of right column at 49 FR 35728 [PDF p. 126 of 144] https://www.govinfo.gov/content/pkg/FR-1984-09-11/pdf/FR-198 4-09-11.pdf#page=126 14. The underlying fabric of law in this case requires this Court to parse a complicated pattern of words woven together over the course of five decades; moreover, the peculiar difficulties of this case were anticipated in 1980 by President Jimmy Carter: "...[T]he action I am taking today will make it easier for those jurisdictions which wish to comply with Federal nondiscrimination statutes and much harder for those who seek to violate those provisions. It is an outgrowth of my determination to prevent Federal dollars from being used to perpetuate patterns of conduct which inhibit the full enjoyment of Federal financial assistance by all groups [not excluding the Plaintiff] within our society. [emphasis added with italics and underlining] — see US Exec. Order 12250 (EO 12250), ''Leadership and Coordination of 24 Nondiscrimination Laws,'' 45 FR 72995 (Nov. 4, 1980); and see EO 12250 Signing Statement of President Carter, November 2, 1980; and see Henrietta D. v. Bloomberg, 331 F.3d 261, 278 (2d Cir. 2003), citing Charles Alan Wright & Arthur R. Miller, 5 Federal Practice & Procedure §1271 (2002) [FRCP re "burden of proof … when the evidence needed is not typically within the party’s control"]; and see 28 CFR §35.164 [burden of proof in writing]; and see NYS UCC §2-313 [express warranty] 15. This motion is about the functional denial of meaningful program access — emphasizing the Plaintiff's continuing needs for "usability" in this US District Court; and this application for the appointment of a Special Master is functionally different from the purposes of the Plaintiff's words in his prolix Supplemental Complaint [ECF Nos. 34-35]. — see top of right column at 45 FR 37629 re "usability" [PDF 24 of 59] https://archives.federalregister.gov/issue_slice/1980/6/3/37576-3 7634.pdf#page=24 14. The Plaintiff's need for the Special Master is made urgent by the misconduct of the scofflaw Defendants in violation of FRCP Rule 60(3); however, in the "cooperative dialogue" with the Special Master, the Plaintiff anticipates that this rule will be background only. — see 28 CFR 25 §35.160(b)(2) [the accommodations and/or modifications "necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place."] [emphasis added with italics and underlining]. 15. The Plaintiff seeks to work together with the Special Master in a process of putting short and plain words together to define a working model of a kind of burden-shifting analysis template for the Plaintiff and this Court to use as needed in needed interactive processes going forward; and this difficult work would seem likely to require (a) parsing the consequences of the chronology of actions and inaction in 2022 through 2024 which today combine to affect Plaintiff's abilities and disabilities in the contexts of "extreme hardship" as defined at RPAPL §753 (2019), including (i) "serious ill health"; and (ii) "exacerbation of ongoing conditions"; and (iii) "extenuating life circumstances" affecting the Plaintiff's abilities and disabilities; and 26 (b) parsing projected consequences of future requests for interactive processes for determining meaningful modifications of procedures. Dated: April 28, 2023 New York, New York Respectfully submitted, /s/ Ronald Davidson Ronald Davidson 531 Main Street, Apt. 217 New York, New York 10044 646-973-7929 ron.center2019@gmail.com 27 EXHIBITS NOTE: There is one exhibit identified in the paragraphs of this Motion. # (1) Motion Exhibit 1 Notice of Eviction – 14 Days, Marshal's Docket No. 15510 Residential, April 25, 2024 TABLE OF CITATIONS CASES Alexander v. Choate, 469 U.S. 287 (1985) ….…………………………………………..…… 15 Cleburne v. Cleburne Living Center, Inc., 473 US 432 (1985) ……………………………………….……………… 16 Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996) …..…………………………………… 15 Crowder v. Kitagawa, 842 F. Supp. 1257 (D. Haw. 1994) ……………………………… 16 Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) …..……….…………………………… 24 Jacobsen v. NYC Health & Hosps. Corp., 22 N.Y.3d 824 (2014) …………………………………………………… 19 McDonnell Douglas Corp v. Green, 411 US 792 (1973) .……..……………………………………………… 19 Plyler v. Doe, 47 US 702, 216 (1982) ….…….……………………………………… 1 US CONSTITUTION Article VI, Paragraph 2 ….………………………………………..…………… 1st Amendment …………………………………………….……………………… 14th Amendment [due process] ………………….……………………… 14th Amendment [equal protection] …………………………………… 2 2 2 2 28 US LAWS Age Discrimination Act of 1975, Pub. L 94-135, 89 Stat. 728 ………………………………………… 3 Americans with Disabilities Act of 1990 (ADA), Pub. L. 101-336, 104 Stat. 327 …………………………………… 4 ADA Amendments Act of 2008 (ADAAA), Pub L. 110-325, 122 Stat. 355 ………………….………………… 4 Civil Rights Restoration Act of 1987 (CRRA), Pub. L. 100-259, 102 Stat. 28 ….………….……………………… 3 Health Insurance Portability and Accountability Act of 1995 (HIPAA), Pub. L. 104–191, 100 Stat 1936 ……..………………………………………………………… 4 Patient Protection and Affordable Care Act of 2010 (ACA), Pub. L. 111-148, 124 Stat. 109–1025 ………………………………………………………… 5 Rehabilitation Act of 1973 (RA or Sec. 504), Pub. L. 93-112, 87 Stat. 355 …………..……………………………… 3 Rehabilitation Act Amendments of 1978, Pub. L. 95-602, 92 Stat. 2995 ………………….……………………… 3 Rehabilitation Act Amendments of 1986, Pub. L. 99-506, 100 Stat. 1807 ….…………………………………… 3 US STATUTES 28 USC §455 ……………………………………………………………………………… 13 42 USC §12134(b) ……….…………………………………………………………… 20 US FEDERAL REGISTER 43 FR 2132 (January 13, 1978) re 45 CFR part 85, Implementation of Executive Order 11914, Nondiscrimination on the Basis of Handicap in Federally Assisted Programs, Coordination of Federal Agency Enforcement of Section 504 of the Rehabilitation Act of 1973 …….………………………………… 4 29 45 FR 37622 (June 3, 1980) re 28 CFR part 42, Nondiscrimination Based on Handicap in Federally Assisted Programs; Implementation of Section 504 of the Rehabilitation Act of 1973 and Executive Order 11914, Final Rule …………………………… 45 FR 72995 (November 4, 1980), US Exec. Order 12250 (EO 12250), Leadership and Co-ordination of Nondiscrimination Laws ………….……… 46 FR 40686 (August 11, 1981) re 28 CFR part 41 and 45 CFR part 85, Redesignation and Transfer of Section 504 Guidelines …………………………………………..………… 49 FR 35724 (Sept. 11, 1984) re 28 CFR part 39, Final Rule, Section-by-Section Analysis and Response To Comments …………………………………….……….……… 56 FR 35694 (July 26, 1991), Nondiscrimination on the Basis of Disability in State and Local Government Services ………..…………………… 75 FR 56164 (September 15, 2010), Nondiscrimination on the Basis of Disability in State and Local Government Services ……………………………… 6 7 7 8 8 2 US REGULATIONS OMB 2 CFR §200.300(a) ………….………………………………………………………… 17 DOJ 28 CFR part 35 …..….…………………………………………………………………… 2 28 CFR §35.130(a) ……………………………………………………………………… 12 28 CFR §35.160 …..……………………………………………………………………… 2 28 CFR §35.160(b)(2) …………..….………………………………………………… 9 28 CFR §35.164 …………………………………………………………………………… 9 28 CFR part 35, app. A (2009) ………………………………………….………. 10 DOJ 28 CFR part 39 ………..……………………………..…………………………………… 8 28 CFR §39.130(b)(3) ………………………………………………………….……… 12 30 28 28 28 28 CFR CFR CFR CFR 28 CFR 28 CFR 45 45 45 45 CFR CFR CFR CFR DOJ part 41 ………..…………………………………………………………………… 7 §41.51(b)(3) ……………………………………………………..…….……… 7 §41.53 ………………………………………………………………..…….……… 8 §41.56 ………………………………………………………………..…….……… 8 DOJ part 42 ………….……………………………..…………………………………… 6 §42.502(c)(1) ……………….….….…………………………………………… 21 HEW part 85 ……….………………………………..…………………………………… 4 §85.51(b)(3) …………………………………………………….……….……… 5 §85.53 ……………………………………………………………………….……… 5 §85.56 ………………………………………………………………….…….……… 6 US RULES Federal Rules of Civil Procedure (FRCP) FRCP Rule 8(a) ………………….………………………………………………….. 19 FRCP Rule 8(d) ………………………………………………………………………………. 21 FRCP Rule 8(e) …………….………………………………………………………………… 21 FRCP Rule 53(a)(1)(B)(i) ……………………………………………………..………… 1 FRCP Rule 60(3) …………………………………………………………….……….……… 25 NYS LAWS Housing Stability and Tenant Protection Act of 2019 (HSTPA), aka Tenant Protection Act (TPA) ………………………………..……………………………..……….……… 14 Executive Law (Exec L), Article 15, Human Rights Law (NY HRL) ………………….……………………………… 16 Real Property Actions and Proceedings Law (RPAPL), Articles 1-21 ……….……….…………………………………… 3 Uniform Commercial Code ……………..……………………………………………… 16 NYS RULES & REGULATIONS NY Exec L §§290–301……………………………………………………………………… 16 NY RPAPL §753 ……………….……………………………………………………….……… 3 NY UCC §§1.101–13.105 ……………..…………………..…………………………… 16 NY UCC §2-313 ………….…………………………………………………………………… 24 31 NYC LAWS NYC Local Law No. 49 (1977), Human Rights Law (NYC HRL) ……………….……………………………………………………. 16 NYC Local Law No. 59 (2018), HRL ……………….……………………………… 19 NYC ADMINISTRATIVE CODE NYC Administrative Code (NYC Code), Title 8, Civil Rights, NYC Code §§8.101-8.703 ….……………………………… 16 NYC Code §8-102 [cooperative dialogue] …….…………………….………… 19 NYC Code §8-107.28 [cooperative dialogue] ………………………….……. 19 MISCELLANEOUS AUTHORITIES NY Assembly, 2-7-23 Joint Legislative Budget Hearing, Testimony of Tamiko Amaker, Acting-Chief Administrative Judge, New York State Office of Court Administration ………..…………………………………………….……… 18 US Department of Justice (DOJ), The Americans with Disabilities Act Title II Technical Assistance Manual Covering State and Local Government Programs and Services (ADA TAM-II), section II–7.1000 …………………….……… 10 US Executive Order 12250 (EO 12250) of Nov. 4, 1980, ''Leadership and Coordination of Nondiscrimination Laws,'' 45 FR 72995 (Nov. 4, 1980) …………….…..........................……. 7 US Exec. Order 12250 (EO 12250) Signing Statement of President Carter, November 2, 1980 ……….…….…………………………………………………… 24 32
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