Sample Judicial Complaint Pro Bono NJ by MikeJenny

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									       COMMONWEALTH OF MASSACHUSETTS

ESSEX, ss.                                          TRIAL COURT DEPARTMENT
                                                    NORTHEAST HOUSING COURT

                                                            CIVIL ACTION NO.


                                   )
V. P, on behalf of                 )         Complaint and Application for
herself and her two minor children )         Temporary Restraining Order
K. and S. Woodland,                )
                                   )
              Plaintiffs,          )
                                   )
v.                                 )
                                   )
DEPARTMENT OF                      )
TRANSITIONAL ASSISTANCE )
and JOHN WAGNER, in his            )
capacity as Commissioner           )
of Transitional Assistance,        )
                                   )
              Defendants           )
                                   )
______________________________




       This is an action for relief under the Americans with Disabilities Act, Section 504 of the

Rehabilitation Act, and G.L. c. 231A, challenging the refusal of the Department of Transitional

Assistance (“Department”) to reasonably accommodate the Plaintiff V. P’s children as required

by law. Ms. P and her children are homeless and recipients of Emergency Assistance (“EA”)

shelter benefits through the Department. Ms. P’s children, ages 12 and 15, both have severe

mental disabilities which include Bipolar Disorder, Major Depression, Generalized Anxiety, and

Attention Deficit Hyperactivity Disorder. The children fared well at their first EA placement at

the Towne Place Suites in Tewksbury, where they lived for seven months. The Department then
moved them to the Pawtucket House congregate shelter in February, 2003, and from that time
their mental and emotional conditions have deteriorated severely. Since February, Ms. P has

requested multiple times to be moved back to the Towne Place Suites, and she has provided the

Department with four letters from the children’s psychiatrist, a letter from her son’s teacher, and a

letter from the Pawtucket House shelter manager all supporting this request. Although the

psychiatrist’s last letter, in April, stated that the children were close to needing hospitalization, the

Department refused to accommodate them.

         Ms. P’s family needs to be moved back to the Towne Place Suites as soon as possible.

The psychiatrist had to increase the children’s medication dosages as recently as two weeks ago.
He believes that the children will deteriorate further if left in the congregate shelter, especially

now that school has ended and they will need to be at the shelter during more hours each day. The

psychiatrist’s opinion is that the children also can not handle being moved to a new setting where

they would have to adjust to new surroundings and have their medical care and social life

disrupted. His opinion is that the only temporary placement likely to halt the children’s

deterioration is the Towne Place Suites, which would not require any further adjustments or

disruptions.



                                        JURISDICTION

1.   Jurisdiction is conferred upon this Court pursuant to G.L. c. 185C, c. 231A, and 42 U.S.C.

§1983.

                                               PARTIES

2.       Plaintiff V. P, is a forty-two year old individual who is homeless and has no permanent

place of residence. She is currently staying with her two children, K. and S. Woodland, the

Pawtucket House Shelter on Pawtucket Street in Lowell, Massachusetts, through a contract with

the Department of Transitional Assistance through its EA program.


3.       The defendant Department of Transitional Assistance is an agency of the Commonwealth.

The Department's principal office is at 600 Washington Street, Boston, Massachusetts.



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4.     John Wagner is the Commissioner of the defendant Department of Transitional

Assistance. In his capacity as Commissioner, defendant Wagner is charged under Mass. Gen.

Laws c. 18 with the supervision and control of the Department of Transitional Assistance which is

responsible for administering the EA program in the Commonwealth.



FACTS REGARDING EMERGENCY ASSISTANCE PROGRAM

Background
5.   Pursuant to the provisions of G.L. c.18 §2(D), the Department must provide Emergency

Assistance (“EA”) temporary shelter to needy homeless families and pregnant women who have

no feasible alternative housing available. G.L. c.18 §2(D)(2). The Commonwealth receives

federal funds for the Emergency Assistance program under Title IV of the Social Security Act.

6.   The Department must administer the EA program in a “fair, just, and equitable manner,”

G.L. c.18 §2(B)(d), providing “fair and equitable treatment,” 42 U.S.C. § 602(a)(1)(B)(iii), “in the

best interest of needy recipients,” G.L. c.18 §2(D).

7.   The 2003 legislative budget states in line item 4403-2120 that “eligible households shall be

placed in shelter as close as possible to their home community, unless the household requests

otherwise. In response, DTA promulgated 106 C.M.R. 309.040(C)(3), which states that “[t]he

Department-approved family shelter shall be located within 20 miles of the EA assistance unit’s

home community, unless the EA assistance unit requests otherwise.”

8. When congregate shelters or “scattered site” shelter placements (apartments rented by non-

profit organizations as shelter space) are not available within a family’s home community, the

Department routinely places families in hotels. The Department currently shelters close to 600

families in hotel settings. The Towne Place Suites in Tewksbury, a residential hotel with suites

that resemble apartments, is one of the hotels where the Department routinely places families.


Reasonable accommodations in the shelter context



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9.    Title II of the Americans with Disabilities Act requires the Department of Transitional

Assistance to provide reasonable accommodations to persons with disabilities when necessary to

allow them to participate fully in the Department’s programs. 42 U.S.C. s. 12132, 28 CFR s.

35.170, 28 C.F.R. 35.130(b)(7). Section 12132 of the Act states that “no qualified individual with

a disability shall, by reason of such disability, be excluded from participation in or be denied the

benefits of the services, programs, or activities of a public entity, or be subjected to discrimination

by such entity.” The implementing regulations at 28 CFR §35.170 state that public entities “shall

not impose or apply eligibility criteria that screen out or tend to screen out an individual with a
disability or any class of individuals with disabilities from fully and equally enjoying any service,

program or activity, unless such criteria can be shown to be necessary for the provision of the

service, program, or activity being offered.” 28 C.F.R. 35.130(b)(8). Public entities must make

“reasonable modifications” in policies, procedures, and practices when “necessary to avoid

discrimination on the basis of disability, unless the public entity can demonstrate that making the

modifications would fundamentally alter the nature of the service, program or activity.” 28 C.F.R.

35.130(b)(7).

13.   Likewise, Section 504 of the Rehabilitation Act and its implementing regulations require

that disabled persons be given equal opportunity to benefit from public programs. 29 U.S.C. s.

794, 45 CFR 84.1 et seq.. The regulations state explicitly that “[i]n providing. . . welfare, or other

social services or benefits, a recipient [of federal funds] may not, on the basis of handicap, . . .

[p]rovide benefits or services in a manner that limits or has the effect of limiting the participation

of qualified handicapped persons,” 45 C.F.R. 84.52(a)(4), and that services afforded to disabled

individuals “must afford handicapped persons equal opportunity to obtain the same result, to gain

the same benefit, or to reach the same level of achievement, in the most integrated setting

appropriate to the person’s needs.”42 C.F.R. 84.4(b)(2) “[I]n order to meet the individual needs of

handicapped persons to the same extent that the corresponding needs of nonhandicapped persons
are met, adjustments to regular programs or the provision of different programs may sometimes

be necessary” 45 C.F.R. Part 84 Appendix A(6).



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14.   The Department’s own regulations at 106 C.M.R. 701.390 require that “no qualified

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 the Department, or be subjected to

discrimination by the Department.” It further provides that “[t]he Department shall make

reasonable modifications in policies, practices, or procedures when the modifications are

necessary to avoid discrimination on the basis of disability, unless the Department can

demonstrate that making the modifications would fundamentally alter the nature of the service,

program, or activity.”
15. The Department’s own regulation at 106 C.M.R. 701.220 states that the Department has the

obligation to “advise applicants and recipients of their rights and responsibilities.” However, the

Department does not provide any notices to shelter applicants or recipients concerning their right

to reasonable accommodation under the Americans with Disabilities Act and the Rehabilitation

Act, nor does it provide notice to recipients concerning a procedure for exercising such right.



FACTS CONCERNING V. P AND K. AND S. WOODLAND

16. V. P’s two children, K. and Stanely Woodland, suffer from severe mental disabilities. K.

Woodland is twelve years old and suffers from Major Depression, Generalized Anxiety, and

Attention Deficit Hyperactivity Disorder. She is prescribed Neurontin, Buspar, Celexa,

Trazedone, Clonidine, Adderall, and Zyprexa. Her symptoms include sadness, uncontrollable

crying, panic attacks, impulsivity, sensitivity to noise, difficulty concentrating, and difficulty

sleeping. S. Woodland is fifteen years old and suffers from Bipolar Disorder, Major Depression,

Generalized Anxiety, and Attention Deficit Hyperactivity Disorder. He is prescribed Seroquel,

Neurontin, Trazedone, Paxil, Addreall, Tabasol, and Zyprexa. His symptoms include extreme

impulsivity, panic attacks, sadness, panic attacks, sensitivity to noise, inability to concentrate,

difficulty sleeping, hyperactivity, and self-injury. Both children’s disorders result from
witnessing an abusive marriage, a divorce, the sudden death of a close family member, and

repeated moves over a short period of time, some of which involved sleeping in cars. Both



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children are treated by Dr. Jeffrey Speller, a psychiatrist with a practice in Chelmsford. Both

children have attended school in Billerica for the past two years.

17. V. P and her children became homeless after Ms. P and her husband divorced and she could

not afford to rent an apartment for herself and her children. After moving around, staying with

various relatives and friends, and sleeping in their car, the family applied for shelter for her family

through the Department’s EA shelter program in August, 2002.

18. For the first seven months that Ms. P’s family received shelter benefits, her family was

placed at the Towne Place Suites in Tewksbury. This is a residential hotel. The family had a
bedroom, living room, kitchen, and bathroom. Ms. P’s fifteen year old son slept in the bedroom

and Ms. P and her daughter slept on a pull-out couch in the living room. Although the children

had panic attacks, Ms. P was able to soothe their attacks by making them food or tea in the middle

of the night, by leaving the hotel, and by driving the children around until they were able to

sleep. While living at the Towne Place Suites, both children did well. They both were in

mainstream classes in school and were on the Honor Rolls for their respective grades.

19. On February 3, 2003, the Department moved Ms. P’s family to the Pawtucket House

congregate shelter in Lowell. When Ms. P went for her interview at the shelter, she explained her

children’s problems and the things that she needed to do to help them when they had panic

attacks. The shelter staff member who interviewed her told her that she could not make food or

tea during the night for her children or take them out of the shelter after 5 p.m., even if they were

having panic attacks. The Department moved the family to the Pawtucket House shelter anyway.

The shelter requested letters from the children’s psychiatrist confirming their diagnoses and

medications, which Ms. P provided. Neither the shelter nor the Department offered any

accommodations.

20. At the Pawtucket House shelter, Ms. P, her 15 year old son, and her 12 year old daughter

must share a bedroom, and they share all other space with five other families. There is a lot of
noise and conflict.




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21. As soon as the family moved to Pawtucket House in February, both S.’s and K.’s conditions

began deteriorating. They both became unable to sleep, had more difficulty concentrating, and

experienced increased impulsivity. They both failed classes for the first time. Stanely failed three

classes, received D’s in his other academic subjects, and K. failed two classes. S.’s hyperactivity,

impulsivity, and inability to concentrate exacerbated, and he lost weight. Dr. Speller increased

both children’s medication dosages and prescribe additional medications to each of their regimens

in order to try to stabilize them.

22. On February 24, 2003, Ms. P provided the Department with a letter from S.’s teacher stating
that he had recently developed disturbing behaviors such as sleeping heavily in class and being

difficult to arouse, tripping and walking into walls purposefully, calling other students names, and

walking impulsively around the room and out into the hallway. The teacher stated “these

behaviors have come to be observed recently and appear to coincide with S.’s recent change in

residence and with medication changes.[]” Ms. P requested that the Department move her family

back to the Towne Place Suites. The Department did not respond to this letter in any way.

23. On March 14, 2003, Dr. Speller wrote a letter to the Pawtucket House manager, Jose

Rodriguez, on behalf of the children, stating “[t]heir condition is deteriorating, and they are more

anxious and depressed. I believe these reactions are a direct result of their situation at the

Pawtucket House.” This letter was forwarded to the Department. The Department did not respond

in any way.

24. In March, 2003, Jose Rodriguez, the manager of the Pawtucket House arranged a meeting

with Dan O’Connor, assistant director of the Lowell DTA office, to discuss the need to move Ms.

P and her children back to the Towne Place Suites. The Department did not move the family or

offer to accommodate the children in any way. Ms. P was not given any information about

procedures for requesting accommodations more formally, nor was she given notice that she was

being denied an accommodation.
25. On April 9, 2003, Dr. Speller wrote a letter directly to Dan O’Connor at Lowell DTA about

the children, stating “I feel they are deteriorating both mentally and emotionally since they began



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living [at the Pawtucket House]. . . I have recently increased their medications and have also

prescribed four other medications for their anxiety, panic attacks, and depression, sleep disorder

and PTSD. They are taking five medications each. A list of these medications is enclosed. I would

highly recommend this family be sent back to the motel that they were residing in before they

were assigned the Pawtucket House Shelter. It seems these children cannot handle any more

changes in their life and I am afraid the next step would be hospitalization. This should be

avoided at all cost.” DTA did not respond to this letter in any way.

26. On April 28, 2003, Mr. Rodriguez, the manager of the Pawtucket House shelter, wrote a letter
to Dan O’Connor at Lowell DTA stating: “In the past few months we have seen the children’s

behavior worsened and the psychiatric symptoms exacerbate due to what appears to be a change

in their environment and or residence. It appears that the amount of medications has been

increased due to the high level of symptoms. I believe this situation needs closer attention due to

the deterioration of their emotional state.” DTA did not respond to this letter.

27. On April 30, 2003, Ms. P sent a letter to Dan O’Connor explaining again that her children

were deteriorating more and more due to the chaos in the shelter, that they could not sleep, and

that she was prohibited from doing the things she needed to do to calm them down when they had

their attacks. She repeated that she was getting calls from their school regarding their behavior

since they moved into the congregate shelter. She concluded by saying, “The shelter is much too

stressful for them due to all the children crying, yelling, and noises all the time. It is almost

impossible for them to sleep. Please help me to alleviate their stress sand try to control their

anxiety.” The Department did not respond to this letter.

28. The Department still has not moved the family or accommodated the children in any way.

The children’s conditions continue to deteriorate. Dr. Speller has had to increase their

medications several times, and as recently as two weeks ago. S. was removed from mainstream

classes in last term of the school year and placed in an entirely self-contained classroom, and still
failed at least one of his classes. The children are at risk of further deterioration now that school




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has ended and they must be at the shelter longer each day. It is Dr. Speller’s opinion that they

remain close to needing hospitalization.

29. Upon threat of this litigation, on June 23, 2003, the Department offered to look for a

“scattered site” placement for the family in Lynn. It is Dr. Speller’s opinion that moving the

family to a new town and forcing the children to adjust to yet another setting on a temporary basis

would be detrimental to them and would disrupt their medical services and their ability to

continue in the same school in the fall. It is his opinion that the only temporary placement which

would halt the children’s deterioration is to move them back to the Towne Place Suites where
they resided successfully for seven months, as such placement is familiar and would not require

further adjustment or disruption of services. S.’ special education teacher has also noted that he

does not transition well to new settings and schedules and that his symptoms increase when he is

forced to make such transitions.



                              FIRST CLAIM FOR RELIEF:

                PLAINTIFFS ARE ENTITLED TO REASONABLE ACCOMMODATION

               By refusing to accommodate the plaintiffs for the past four months, the Defendant

violates The Americans with Disabilities Act and its implementing regulations, 42 U.S.C. s.

12132, 28 CFR s. 35.170, 28 C.F.R. 35.130(b)(7); Section 504 of the Rehabilitation Act and its

implementing regulations, 29 U.S.C. s. 794, 45 C.F.R. 84.52(a)(4), 45 C.F.R. 84.4(b)(2), 45

C.F.R. Part 84 Appendix A(6); and its own regulation at 106 C.M.R. 701.390. The plaintiff is

entitled to relief pursuant to G.L. c..231A; Section 505 of the Rehabilitation Act of 1973, as

amended, 29 U.S.C. §794a; Section 203 of the ADA, 42 U.S.C. § 12133; and 42 U.S.C. §1983.




                     SECOND CLAIM FOR RELIEF:
THE DEPARTMENT ACTED UNLAWFULLY BY FAILING TO PROVIDE MS. P NOTICE
OF HER RIGHT TO REASONABLE ACCOMMODATION, THE PROCEDURE FOR


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REQUESTING AN ACCOMMODATION, OR A PROCEDURE FOR GRIEVING THE
ACCOMMODATION DENIAL



     The Department’s failure to advise Ms. P of her right to reasonable accommodation, the

procedure for requesting an accommodation, or a procedure for grieving the Department’s failure

to accommodate her violates the Department’s own regulation at 106 C.M.R. 701.220. Such

failure has prevented Ms. P from filing an administrative grievance for the past four months and

has resulted in her children’s conditions deteriorating further and further. The plaintiffs are

entitled to relief pursuant to G.L. c..231A.



PRAYER FOR RELIEF

        Relief on all of the plaintiffs’ claims is available pursuant to G.L. c. 231A. Relief on all of

the plaintiffs’ federal claims is available pursuant to, inter alia, 42 U.S.C §1983. The Plaintiff

asks this court to grant the following relief:

1.       Issue a temporary order providing that the Department must accommodate S. and K.

Woodland by transferring them from the Pawtucket House congregate setting back to the Towne

Place Suites;

2.      Pursuant to G.L., c. 231A, declare the rights of the parties;

3.     Grant such other and further relief as the Court deems just and equitable.
                                                     Respectfully submitted,
                                                     V. P, attornies,
                                                     By her
                                                     _____________________
                                                     Michelle Lerner
                                                     BBO# 638688Pratt
                                                     Alexander H.
                                                     BBO# 405480
                                                     Merrimack Valley
                                                     Legal Services 302
June 23, 2003
                                                     35 John MA Ste.
                                                     Lowell, St., 01852
                                                     (978) 458-1465




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