UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________

RUDY DENMEADE, TAMMY MILILLO,
And JASON BOWMAN

                                                Plaintiffs

                                                                                COMPLAINT

    -Against-                                                           Jury Trial Demanded

ROBERT L. KING, individually and in his capacity
as CHANCELLOR of the STATE UNIVERSITY
OF NEW YORK, and

The BOARD of TRUSTEES of the STATE
UNIVERSITY OF NEW YORK, and

WILLIAM R. GREINER, individually and in his
capacity as the President of the STATE UNIVERSITY
OF NEW YORK AT BUFFALO, and

STATE UNIVERSITY OF NEW YORK
AT BUFFALO

                                                                    Defendants.
____________________________________

        1. This is a civil action brought by students with physical disabilities at the UNIVERSITY AT BUFFALO, State University of New York ("SUNYAB") for declaratory and injunctive relief and damages, under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, sustained by virtue of defendants' failure to afford them reasonable accommodations and/or accessibility to its programs, services, activities, and/or facilities to which they are entitled. Plaintiffs also bring this action pursuant to the Civil Rights Act of 1871, Title 42 U.S.C. § 1983, to obtain redress for unlawful acts and omissions of the defendant under color of state law depriving plaintiffs of rights, privileges, and immunities secured to them by the First and Fourteenth Amendments to the Constitution of the United States.

        2. This case arises out of defendant UNIVERSITY AT BUFFALO, State University of New York’s failure to provide persons with physical disabilities legally required access to facilities, services, activities, and programs owned, operated, controlled and/or maintained by the State University of New York, a governmental and public entity.

        3. The University AT buffalo, State University of New York has architectural barriers, among which include inaccessible classrooms, inaccessible buildings, inaccessible restrooms, inaccessible parking spaces, inaccessible paths of travel, inaccessible curbcuts, an inaccessible Student Health Center, lack of proper snow removal policies and practices, and a lack of appropriate signage for accessible entrances, restrooms and parking.  Furthermore, defendants have discriminated against plaintiff Milillo by actively discouraging her from applying to an educational program based on her physical disability.

        4. Defendants have knowingly failed to respond to plaintiffs’ requests to remove architectural barriers and to allow admission into an educational program. Plaintiffs in this action have suffered repeated deprivation of their civil rights as well as loss of educational opportunity solely because of defendants’ repeated violations of state and federal law regarding access for students with mobility impairments.

        5. Upon information and belief, defendants have known for years that they are required by Section 504 of the Rehabilitation Act of 1973 and its accompanying regulations to address unequal facilities in the form of a Self-Evaluation Plan and a Transition Plan, whereby defendants shall identify all accommodations, programs, services, and activities which deny equal access to persons with disabilities. Upon information and belief, Defendants have also known for over a decade that they were required by Section 504 to have implemented structural changes to create equal access to the facilities owned, operated, controlled and/or maintained by SUNYAB. In addition, defendants have known that they were required under Title II of the Americans with Disabilities Act of 1990 (ADA) to implement structural changes to create equal access to their facilities by January 26, 1995.

        6. Defendants have failed to meet these federal requirements, failed to develop adequate plans, and have denied equal access to persons with physical disabilities despite specific requests to its agents to adopt reasonable accommodations and even agreement by its agents to remedy certain problems.

        7. Plaintiffs seek declaratory and injunctive relief and damages against the defendants for severely limiting plaintiffs’ educational opportunities and access to services by refusing to eliminate architectural barriers and by failing to provide access to educational programs, all of which are routinely made available to non-disabled students, resulting in emotional and physical distress to the plaintiffs in violation of the above-stated laws. These are continuing violations which, unless SUNYAB is permanently enjoined, will continue to result in irreparable harm and exclusion from basic educational opportunities

JURISDICTION

        8. Jurisdiction is conferred on this Court pursuant to 42 U.S.C. § 12101, et seq. (Americans with Disabilities Act [ "ADA"] ); 29 U.S.C. § 794 (Section 504 of the Rehabilitation Act of 1973 ["Section 504"]; 28 U.S.C. § 1343(3) and (4); 28 U.S.C. § 1331. Plaintiffs seek declaratory and injunctive relief pursuant to 28 U.S.C. §2201 and §2202, compensatory and punitive damages, and any other appropriate relief.

        9. Plaintiff Tammy Milillo is 23 years old and is a citizen of the United States. Ms. Milillo has Cerebral Palsy and is a wheelchair-user. She has limited use of her arms and requires the services of a personal care aide to assist with her activities of daily living. Plaintiff Milillo is enrolled in a course of study at defendant SUNYAB. Ms. Milillo resides in a dormitory on the SUNYAB Amherst, New York campus during the academic year. Plaintiff Milillo is an individual with a disability who is otherwise qualified and meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity within the meaning of 42 U.S.C. §12102; 28 C.F.R § 35.104; 29 U.S.C. § 706; and 34 C.F.R. §104.3. Plaintiff Milillo is an intended beneficiary pursuant to 42 U.S.C. §12131 et seq. and 29 U.S.C. § 794.

        10. Plaintiff Rudy Denmeade is 23 years old and is a citizen of the United States. Mr. Denmeade has Muscular Dystrophy and is a wheelchair user. He has limited use of his arms and requires the services of a personal care aide to assist with his activities of daily living. Plaintiff Denmeade is enrolled in a course of study at defendant SUNYAB and is scheduled to graduate in May, 2000. He resides in a dormitory at SUNYAB’s Amherst campus during the academic year. Plaintiff Denmeade expects to return to SUNYAB as a graduate student in the future for further study. Plaintiff Denmeade is an individual with a disability who is otherwise qualified and meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity within the meaning of 42 U.S.C. §12102; 28 C.F.R. § 35.104; 29 U.S.C. §706; and 34 C.F.R. §104.3. Plaintiff Denmeade is an intended beneficiary pursuant to 42 U.S.C. §12131 et seq. and 29 U.S.C. §794.

        11. Plaintiff Jason Bowman is 28 years old and is a citizen of the United States. Mr. Bowman has Quadriplegia and is a wheelchair-user. He has paralysis of all four limbs. Mr. Bowman has a service animal who assists him with mobility-related activities of daily living. Plaintiff Bowman is a law student at SUNYAB and will graduate in May, 2000. Mr. Bowman resides at the SUNYAB Amherst Campus during the course of his study at the law school. Plaintiff Bowman is an individual with a disability who is otherwise qualified and meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity within the meaning of 42 U.S.C. §12102; 28 C.F.R. §35.104; 29 U.S.C. §706; and 34 C.F.R. §104.3. Plaintiff Bowman is an intended beneficiary pursuant to 42 U.S.C. §12131 et seq. and 29 U.S.C. §794.

        12. Defendant, Robert L. King, is Chancellor of the STATE UNIVERSITY OF NEW YORK, a state-operated educational institution, which receives federal financial assistance and is subject to regulation under Section 504 of the Rehabilitation Act of 1973. Upon information and belief, as CHANCELLOR, defendant KING is responsible for the conduct of the business of University, including but not limited to, the establishment and maintenance of university policies related to compliance with federal and state law regarding disabilities.

        13. Defendant, BOARD OF TRUSTEES, is the governing board of the STATE UNIVERSITY OF NEW YORK, has issued a policy of "Nondiscrimination on the Basis of Handicap", and is responsible for compliance with federal and state laws and regulations, including those related to disabilities.

        14. Defendant, WILLIAM R. GREINER, is PRESIDENT of the UNIVERSITY AT BUFFALO, STATE UNIversity OF NEW YORK. Upon information and belief, in his capacity as PRESIDENT, defendant GREINER is responsible for the conduct of the business of the University, including but not limited to, the establishment and maintenance of university policies related to compliance with federal and state laws regarding disabilities.

        15. Defendant, SUNYAB, is a state-operated post-secondary institution and is a public entity within the meaning of Title II of the Americans with Disabilities Act [ADA], 42 U.S.C §12131 and its implementing regulation, 28 C.F.R. § 35.104.

        14. The defendant, SUNYAB, is a recipient of federal financial assistance and is therefore subject to the requirements of 29 U.S.C. §794 [Section 504], and the regulations promulgated thereunder.

        15. The defendant, SUNYAB, provides educational and related programs and services to its students, alumni, and members of the public, as well as other programs, services, and facilities, and is obligated to provide same in compliance with the ADA and Section 504. Upon information and belief, the STATE UNIVERSITY OF NEW YORK AT BUFFALO maintains administrative offices for the conduct of its business located at Capen Hall, on the SUNYAB campus, in the Town of Amherst, County of Erie, and State of New York.

FACTUAL ALLEGATIONS

General

        16. SUNYAB offers educational, extracurricular, and other programs and services to its students, alumni, and members of the public.

        17. SUNYAB has failed to provide facilities which are appropriately accessible to and/or usable by individuals with physical disabilities, including the named plaintiffs, and has thereby denied them the benefits of and/or has excluded them from appropriate participation in programs, services, and/or activities to which they are entitled.

        18. SUNYAB has failed to provide facilities, services, activities, and/or programs which are accessible to and/or usable by individuals with physical disabilities, including the named plaintiffs, without the need to rely on the assistance of others.

        19. SUNYAB has existing facilities, and routes of travel between and within said facilities, containing architectural barriers which prevent accessibility to services, programs, and activities therein by individuals with physical disabilities, including the named plaintiffs.

        20. SUNYAB has failed to remove architectural barriers in its existing facilities, even when such removal would not result in fundamental alteration in the nature of the program or in undue financial and administrative burdens (see 28 CFR §35.150).

        21. SUNYAB has failed to make its services, programs, activities, and/or facilities available through alternative measures other than the removal of barriers even where such methods would not result in fundamental alteration in the nature of the program or in undue financial and administrative burdens.

        22. SUNYAB has failed to design and construct alterations to its facilities so that they are readily accessible to and usable by individuals with physical disabilities, including the named plaintiffs.

        23. SUNYAB has failed to maintain access to programs, services, and/or activities in and about its existing facilities in a manner which is appropriately accessible to individuals with physical disabilities, including the named plaintiffs.

Parking Facilities

        24. SUNYAB has failed to provide adequate accessible parking facilities and thereby denies accessibility to individuals with physical disabilities, including the named plaintiffs.

Signage

        25. SUNYAB has failed to provide adequate signage to indicate the location of accessible entrances and toilet facilities for individuals with physical disabilities, including the named plaintiffs.

Restrooms Facilities

        26. SUNYAB has failed to offer properly accessible toilet facilities for individuals with physical disabilities, including the named plaintiffs.

        27. SUNYAB’s failure to provide accessible toilet stalls and doors in restrooms in campus buildings resulted in a situation which caused exposure and embarrassment to Ms. Milillo.

        28. SUNYAB’s failure to provide accessible toilet facilities for students with disabilities in educational buildings has resulted in the need for plaintiff Milillo to return to her dormitory suite to use those facilities. This situation is inconvenient for Ms. Millilo and adversely affects her ability to attend class and take tests without interruption. Additionally, plaintiff Milillo must rely on the only accessible van to transport her to her dormitory when she needs to use toileting facilities.

Accessible Transportation

        29. Upon information and belief, SUNYAB has one recently purchased handicap accessible van which is used to transport individuals with mobility impairments. Upon information and belief, SUNYAB has another vehicle which is in poor condition and is not always reliable. Upon information and belief, if the accessible van is unusable or needs repair, there is no guarantee that the alternative vehicle is usable or that a plan exists to provide alternative transportation. This results in situations where plaintiffs have no access to a vehicle to transport them to campus and educational buildings.

        30. Upon information and belief, transportation by accessible van is limited to certain times and locations and does not provide equal access to campus activities and programs. Upon information and belief, in comparison, SUNYAB has contracted with a bus company to provide transportation for non-disabled individuals to locations both on and off campus with far fewer time restrictions.

Student Health Center

        31. Upon information and belief, SUNYAB requires all students to pay a Student Health Center Fee.

        32. SUNYAB has failed to provide access to the Student Health Center and its services for individuals with physical disabilities, including two of the named plaintiffs.

        33. Both plaintiff Milillo and plaintiff Bowman have experienced obstacles to treatment at the Student Health center including the inability to access the waiting room, toilet facilities, and laboratory test services.

        34. The Student Health Center is located in a building on the South Campus despite the fact that a majority of students reside and attend classes at the North Campus. As a result, students with mobility impairments, including plaintiff Milillo, must rely on the one accessible van to transport them to the Student Health Center to obtain treatment when it is available.

        35. Upon information and belief, the Student Health Center waiting room is inaccessible. There are one or more steps leading to the waiting room which prevents access by individuals who use wheelchairs. Upon information and belief, there is no accessible ramp to the waiting room.

        36. Upon information and belief, there is no elevator in the health center and laboratory test services and restrooms are located on an inaccessible floor.

        37. Upon information and belief, the examining rooms and equipment in the health center are inaccessible to individuals who use wheelchairs.

        38. On or about October, 1999, Plaintiff Milillo sought treatment at the health center for a kidney infection. She was informed by an employee at the health center that she could not be examined there because the health center does not have the facilities to treat someone with her disabilities. Ms. Milillo was advised by this employee to call for an ambulance to transport her to the hospital for treatment then and in the future.

Snow Removal

        39. SUNYAB has failed to implement a snow removal program ensuring access to its facilities, programs, and services for individuals with physical disabilities, including the named plaintiffs.

        40. During February, 2000, plaintiff Milillo’s wheelchair became stuck in a snowbank as she attempted to transverse a curbcut. Ms. Milillo was forced to wait twenty minutes, alone in the cold, until two men arrived and voluntarily picked her up in the wheelchair to overcome this obstacle.

        41. On February 14, 2000, SUNYAB failed to properly remove snow and clear the route of travel between Clinton Hall, the dormitory where each plaintiff resides, and the campus educational buildings. At approximately 7:30 p.m., plaintiff Denmeade called to request that this route be plowed before 8:00 p.m., at which time plaintiff Bowman was scheduled to return from the educational buildings. In fact, the route was not plowed until approximately 10:30 p.m. causing Mr. Bowman to experience difficulty returning to his dormitory that evening. This incident is an example of barriers presented to individuals with disabilities caused by failure on the part of defendants to properly remove snow but is not the only incident where and when such barriers are present.

Curbcuts

        42. SUNYAB has failed to maintain curbcuts in appropriate and safe conditions thereby limiting accessible routes and creating a risk of injury to individuals with physical disabilities, including the named plaintiffs.

Classrooms

        43. SUNYAB has failed to make its classrooms accessible to students with disabilities and, in particular, to students who are wheelchair users. This results in situations where plaintiffs have been denied their ability to associate with, or participate in conversations with, teachers and students after class. Furthermore, SUNYAB has failed to provide reasonable accommodations for students when taking exams in its classrooms.

Door Handles, Entrances, Computer Equipment

        44. SUNYAB has failed to install lever handles on classroom doors thereby preventing access to individuals with physical disabilities, including the named plaintiffs.

        45. SUNYAB has failed to provide electric buttons on many entrance doors. As a result, plaintiff Denmeade has been forced to wait until someone can hold doors open for him in order to transport himself from building to building, causing him to be late for classes.

        46. SUNYAB has failed to provide an accessible entrance to the fourth floor computer classroom, and accessible computer equipment, located in O’Brian Hall, for individuals with physical disabilities, including the named plaintiffs.

Dormitories

        47. SUNYAB has failed to provide proper access to the study room and water fountains for individuals with disabilities, including the named plaintiffs, in Clinton Hall, a dormitory used to house students with disabilities. Additionally, students with mobility impairments are unable to control temperature or manage curtains in their rooms at this dormitory facility.

        48. The shower stall in the women’s accessible suite does not comply with state and federal law and is unsafe for Ms. Milillo and other individuals who use wheelchairs.

Pharmacy Program

        49. SUNYAB has failed to ensure access to its programs and services by intentionally dissuading plaintiff Milillo from applying for the Pharmacy program due to her disabilities.

        50. Plaintiff Milillo is an undergraduate student who is currently enrolled in her third year at defendant SUNYAB. She has been accepted to the Chemistry major program and has a 3.6 grade point average.

        51. Upon information and belief, as a freshman, Plaintiff Milillo met with an acting dean at the Pharmacy School to explore the possibility of enrolling in that program. Upon information and belief, the acting dean and faculty of the pharmacy school informed Ms. Milillo that it was unlikely that she would be able to complete the pharmacy program due to her disabilities.

        52. As a freshman student, Plaintiff Milillo was informed by the acting dean and and faculty of the Pharmacy school that they would only consider her application for program admission, if she was able to demonstrate that she would be able to complete fourth year laboratory experiments to their satisfaction before allowing her to enroll in the program.

        53. Plaintiff Milillo was further discouraged from applying to this program by Randy Borst, Director of Disability Services at SUNYAB. Mr. Borst informed Ms. Milillo that at least one other student with a disability enrolled in the program but was denied a degree in pharmacy at the end of the fourth year when that student was unable to complete laboratory examinations to the satisfaction of the faculty due to a disability.

        54. The acting dean and faculty of the Pharmacy School never offered to make any accommodations to ensure that the pharmacy program was accessible to Ms. Milillo.

Additional Barriers

        55. The preceding examples of architectural and programmatic barriers which deny students with disabilities educational opportunities are illustrative and not exhaustive. Upon information and belief, SUNYAB has deliberately established and continues to practice a pervasive policy of illegally maintaining premises that are not accessible to individuals with physical disabilities.

        56. SUNYAB has known for years that it operates illegal facilities and programs which, by reason of architectural and programmatic barriers, discriminate against individuals with mobility impairments but has intentionally refused to comply with federal disability non-discrimination laws.

        57. Upon information and belief, many of the illegal and inaccessible facilities and programs could be effectively remedied in a relatively short time period without incurring burdensome expense.

        58. By virtue of its above-described failure to afford plaintiffs reasonable accommodations and/or accessibility to its facilities, services, activities, and/or programs, the defendants’ conduct constitutes discrimination on the basis of disability in violation of Title II of the ADA and its implementing regulations, and has resulted in actual, compensatory, and punitive damages including emotional and physical distress for each of the plaintiffs.

        59. Accordingly, plaintiffs are entitled to relief, as set forth in the wherefore clause below.

  SECOND CLAIM FOR RELIEF

        60. By virtue of its above-described failure to afford plaintiffs reasonable accommodations and/or accessibility to its facilities, services, activities and/or programs, defendants’ conduct constitutes discrimination on the basis of disability in violation of 29 U.S.C. § 794 [Section 504], and its implementing regulations, and has resulted in emotional and physical distress for the plaintiffs..

        61. Accordingly, plaintiffs are entitled to relief, as set forth in the wherefore clause below.

THIRD CLAIM FOR RELIEF

        62. By virtue of the foregoing actions and omissions of the defendants, under color of law and official policy and custom, defendants have denied plaintiffs their rights under 29 U.S.C. §794 and 42 U.S.C. §12133, in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution, and has caused each plaintiff physical and emotional distress. These claims are actionable under 42 U.S.C. § 1983.

        63. By virtue of the foregoing actions and omissions of the defendants, under color of law and official policy and custom, defendants have denied plaintiffs’ their right to freedom of association under the First Amendment and right to equal protection under the Fourteenth Amendment. These claims are actionable under 42 U.S.C. § 1983.

        WHEREFORE, plaintiffs respectfully request that this court:

        1. Assume jurisdiction over this action.

        2. Issue a declaratory judgment in favor of the named plaintiffs, against defendants, declaring that defendants have violated Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. and/or Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and/or 42 U.S.C. §1983 by:

                a) failing to afford plaintiffs the full and equal enjoyment of the goods, services, programs, activities, facilities, privileges, advantages, and/or accommodations to which they are entitled as individuals with disabilities; and

                b) failing to make reasonable modifications in policies, practices, or procedures; and/or failing to afford plaintiffs reasonable accommodations.

        3. Issue permanent injunctive relief to require a complete assessment of all facilities at SUNYAB in order to identify all accessibility violations of federal and state law which exist on campuses and properties.

        4. Issue permanent injunctive relief to provide named plaintiffs, and others similarly situated, with programs, services, activities and/or facilities that are in full compliance with the ADA and Section 504.

        5. Issue permanent injunctive relief requiring defendant to develop a priority plan and schedule for making its programs, services, activities and/or facilities accessible and to permit input and monitoring of such plan by plaintiffs.

        6. Issue a monetary judgment against the defendants in favor of plaintiff, Tammy Milillo , individually, in an amount to be determined at trial, as consequential damages.

        7. Issue a monetary judgement against the defendants in favor of plaintiff, TAMMY MILILLO, individually, in an amount to be determined at trial, as punitive damages for reckless disregard of the Plaintiff’s federally protected rights.

        8. Issue a monetary judgement against the defendant in favor of the plaintiff, Rudy Denmeade, individually, in an amount to be determined at trial, as consequential damages.

        9. Issue a monetary judgment against the defendants in favor of plaintiff, RUDY DENMEADE, individually, in an amount to be determined at trial, as punitive damages for reckless disregard of Plaintiff’s federally protected rights.

        10. Issue a monetary judgment against the defendants in favor of plaintiff, Jason Bowman, individually, in an amount to be determined at trial, as consequential damages.

        11. Issue a monetary judgment against the defendants in favor of plaintiff, JASON BOWMAN, individually, in an amount to be determined at trial, as punitive damages for reckless disregard of Plaintiff’s federally protected rights.

        12. Grant a jury trial and award to plaintiffs all appropriate damages in an amount to be proven at trial, together with interest and pre-judgement interest as to each plaintiff.

        13. Maintain continuing jurisdiction over this action until defendants are in compliance with the ADA, Section 504, and every order of this Court.

        14. Award to plaintiffs all costs of this proceeding, including reasonable expenses and attorneys’ fees pursuant to 42 U.S.C. § 12205, 28 CFR §35.175, 29 U.S.C. §794(a), and 42 U.S.C. §1988.

        15. Order such other and further relief as to this Court may seem just and proper.

        Plaintiffs hereby demand a jury trial.

DATED: May , 2000

Respectfully submitted,

__________________________________
WESTERN NEW YORK LAW CENTER, INC.
Attorneys for Plaintiffs
Kathleen A. Lynch, Esq., of Counsel
Linda R. Hassberg, Esq., of Counsel
295 Main Street, Suite 454
Buffalo, New York 14203
(716) 855-0203

__________________________________
NEIGHBORHOOD LEGAL SERVICES, INC.
Attorneys for Plaintiffs
William F. Mastroleo, Esq., of Counsel
Ronald Hager, Esq., of Counsel
295 Main Street, Suite 495
Buffalo, New York 14203 (716) 847-0650

___________________________________
LAW OFFICE OF WILLIAM E. GRANDE, ESQ.
Attorneys for Plaintiffs
William E. Grande, Esq., of Counsel
18 Charleston Avenue
Kenmore, New York 14217
(716) 447-1047

___________________________________
GREATER UPSTATE LAW PROJECT, INC.
Attorneys for Plaintiffs
Edwin Lopez-Soto, Esq., of Counsel
Ellen Yacknin, Esq., of Counsel
80 St. Paul Street, Suite 660
Rochester, New York 14604-1350
(716) 454-6500