The Clerk of the Court is directed to amend the official caption as set forth above.… v. Oliveira 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 -------- 4…

The Clerk of the Court is directed to amend the official*
caption as set forth above.
The Honorable Lawrence E. Kahn, United States District Judge**
for the Northern District of New York, sitting by designation.
08-4113-cv
Bolmer v. Oliveira
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 --------
4 August Term, 2009
5 (Argued: November 13, 2009 Decided: February 8, 2010)
6 Docket No. 08-4113-cv
7 -----------------------------------------------------------X
8 BRETT BOLMER,
9 Plaintiff-Appellee,
10 - v. -
11 JOSEPH OLIVEIRA, M.D., CONNECTICUT DEPARTMENT OF MENTAL HEALTH
12 AND ADDICTION SERVICES,
13 Defendants-Appellants,
14 MALENA SANGUT, DIANE DEKEYSER, M.D., VICTORIA ESTABA, M.D., DONNA
15 PELLERIN, M.D., DANBURY HOSPITAL,
16 Defendants.*
17 -----------------------------------------------------------X
18 Before: McLAUGHLIN and WESLEY, Circuit Judges, and KAHN,
19 District Judge.**
20 Appeal from an order of the United States District Court for
21 the District of Connecticut (Arterton, J.) entered August 6,
22 2008. The court denied summary judgment to Defendants who had

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2
1 asserted qualified immunity and Eleventh Amendment immunity
2 defenses. On interlocutory appeal, Defendants-Appellants raise
3 several arguments we have no jurisdiction to review, and we
4 DISMISS the appeal as to these arguments. As to their reviewable
5 challenges, we cannot conclude as a matter of law that
6 Defendants-Appellants are entitled to qualified immunity or
7 Eleventh Amendment immunity. We therefore AFFIRM the denial of
8 summary judgment on these defenses.
9 EMILY V. MELENDEZ, Assistant
10 Attorney General, for Richard
11 Blumenthal, Attorney General of the
12 State of Connecticut, Office of the
13 Attorney General, Hartford, CT, for
14 Defendants-Appellants.
15
16 WILLIAM BROOKS, Touro Law Center,
17 Central Islip, NY, for Plaintiff-
18 Appellee.
19
20 NANCY B. ALISBERG, Office of
21 Protection & Advocacy for Persons
22 with Disabilities, Hartford, CT,
23 for Plaintiff-Appellee.
24
25 SUSAN J. KOHLMANN, Jenner & Block
26 LLP (Danielle F. Tarantolo, on the
27 brief), New York, NY, for Amici
28 Curiae National Disability Rights
29 Network, New York Lawyers for the
30 Public Interest, and Vermont
31 Protection & Advocacy, Inc., in
32 support of Plaintiff-Appellee.
33

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3
1 McLAUGHLIN, Circuit Judge:
2 This case arises from the involuntary commitment of Brett
3 Bolmer. He sued various individuals and entities involved in his
4 commitment in the United States District Court for the District
5 of Connecticut (Arterton, J.). As relevant to this appeal,
6 Bolmer claimed that Dr. Joseph Oliveira violated his Fourth
7 Amendment and substantive due process rights enforceable under 42
8 U.S.C. § 1983, and falsely imprisoned him in violation of
9 Connecticut law, when he ordered Bolmer committed. Bolmer also
10 alleged that the Connecticut Department of Mental Health and
11 Addiction Services (“DMHAS”) violated Title II of the Americans
12 with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131 et seq., by
13 “stereotyping Mr. Bolmer as an unreliable individual who
14 manifested delusions because of his diagnosed mental illness.”
15 Oliveira and DMHAS moved for summary judgment on the grounds
16 that (1) Oliveira, as a state officer, has qualified immunity to
17 Bolmer’s § 1983 claims and has sovereign immunity to the false
18 imprisonment claim; and (2) DMHAS is immune to the Title II claim
19 under the Eleventh Amendment. The district court granted summary
20 judgment on Oliveira’s defense of sovereign immunity to Bolmer’s
21 false imprisonment claim, but denied summary judgment on the
22 qualified immunity and Eleventh Amendment immunity defenses.

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4
1 On interlocutory appeal, Defendants-Appellants raise several
2 arguments we have no jurisdiction to review under the collateral
3 order doctrine, and we dismiss the appeal as to these arguments.
4 However, their central thrust raises reviewable challenges to the
5 legal standards the district court employed in denying them
6 summary judgment on their qualified immunity and Eleventh
7 Amendment immunity defenses.
8 First, Oliveira argues that the medical-standards test set
9 forth in Rodriguez v. City of New York, 72 F.3d 1051 (2d Cir.
10 1995) for determining whether an involuntary commitment violates
11 substantive due process is inconsistent with County of Sacramento
12 v. Lewis, 523 U.S. 833 (1998). He contends that it imposes
13 liability for conduct that does not “shock the conscience.” We
14 disagree, and hold that Rodriguez is consistent with Lewis.
15 Second, DMHAS believes that, under Garcia v. S.U.N.Y. Health
16 Sciences Center of Brooklyn, 280 F.3d 98 (2d Cir. 2001), the
17 district court should have required a showing that it acted with
18 discriminatory animus or ill will before denying it summary
19 judgment on its Eleventh Amendment immunity defense to Bolmer’s
20 Title II claim. Absent such a showing, DMHAS argues, Congress’s
21 abrogation of DMHAS’s immunity is invalid. Because Garcia was
22 based on Congress’s enforcement of the Equal Protection Clause,
23 we hold that it is not applicable when Congress’s abrogation is

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5
1 supported by its enforcement of the substantive due process right
2 not to be involuntarily committed absent a danger to self or
3 others.
4 Because we cannot conclude as a matter of law that
5 Defendants-Appellants are entitled to qualified immunity or
6 Eleventh Amendment immunity, we affirm the denial of summary
7 judgment on these defenses.
8 BACKGROUND
9 Plaintiff-Appellee Brett Bolmer has a history of mental
10 illness. In 2003, the Greater Danbury Mental Health Authority
11 (“GDMHA”) began providing housing to Bolmer through its
12 Transitional Housing Program (the “Program”). GDMHA is a local
13 agency of DMHAS that provides out-patient services to patients in
14 its care. As part of the Program, Bolmer was assigned a case
15 manager, Lisa Kaminski. Bolmer and Kaminski had known one
16 another before, having grown up in the same town. Upon
17 Kaminski’s appointment, the two began communicating frequently
18 through text messages and phone calls.
19 According to Bolmer, he began a sexual relationship with
20 Kaminski in February 2004. He claims that they would meet once
21 or twice per week at Kaminski’s apartment.

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6
1 On September 13, 2004, Bolmer placed roses on Kaminski’s
2 car. He asserts that when he saw Kaminiski later that day, she
3 told him that their relationship was over.
4 The next day, Bolmer told the director of the Program, Rick
5 Hammond, that he had been involved in a sexual relationship with
6 Kaminski. He also told a GDMHA caseworker, Mike Anello. Around
7 the same time, Kaminski notified Hammond that Bolmer had left
8 flowers on her car and had called her twice. GDMHA staff
9 questioned whether Bolmer was manifesting “erotomania,” a
10 psychiatric syndrome characterized by a false belief that there
11 exists a romantic relationship with another person. No one
12 believed in the alleged sexual relationship with Kaminski. A
13 GDMHA caseworker, Joe Halpin, informed Bolmer’s probation officer
14 of the situation. The officer called Bolmer and told him to
15 return to the GDMHA facility. Bolmer complied.
16 The facts surrounding Bolmer’s return to GDMHA are
17 controversial. According to Bolmer, he was annoyed when he had
18 to return, so he was speaking loudly to the staff, but was not
19 yelling. Dr. Joseph Oliveira, a GDMHA psychiatrist whom Bolmer
20 had never met, entered the room and, without introducing himself,
21 told Bolmer that he was there to conduct a “mini mental health
22 exam.” Oliveira asked Bolmer to repeat three words: “motor,
23 tree, giraffe,” but “barely” asked him any questions. At this

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7
1 point Bolmer realized that Oliveira was considering whether to
2 have him committed. Bolmer tried to explain his feelings about
3 his breakup with Kaminski to those in the room – Oliveira,
4 Halpin, and Anello – but they “kept looking at [him] as if [he]
5 was crazy to be thinking that a case worker could possibly have
6 an affair with a crazy person.” Oliveira “rolled his eyes” at
7 Bolmer.
8 Frustrated that no one believed him, Bolmer began talking
9 about other injustices he had suffered. After someone told him
10 to calm down, Bolmer attempted to convey that he was not angry.
11 He stated that “if [he] was really angry that [he] would pick up
12 the chair in the room and throw it.” Oliveira then opened the
13 door and police and ambulance workers “came rushing in.” Bolmer
14 claims that the examination lasted “no more than five minutes.”
15 According to DMHAS and Oliveira, when Bolmer returned to the
16 GDMHA facility he was yelling loudly enough for Oliveira to hear
17 him in the next room. Out of concern for everyone’s safety,
18 Oliveira had a staff member call the police. During the
19 evaluation, Bolmer exhibited increasing anger and hostility,
20 stating that if he were angry, he “would pick up the fan in the
21 room and throw it and go over and kick Joe Halpin in the head.”
22 At this point, Oliveira determined that the examination could not

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8
1 continue safely. According to Oliveira and GDMHA staff, the
2 examination lasted at least 15 minutes.
3 The parties do not dispute that, at the conclusion of the
4 examination, Oliveira executed a Physician’s Emergency
5 Certificate ordering Bolmer involuntarily committed “for no more
6 than 15 days care and treatment in a mental hospital.” Oliveira
7 noted on the Certificate that Bolmer was having erotomanic
8 delusions about Kaminski, and appeared angry and hostile. He
9 concluded, “Patient at this time, in my clinical opinion, is
10 dangerous and poses a threat to others.”
11 The ambulance workers transported Bolmer to Danbury
12 Hospital, a private institution providing in-patient psychiatric
13 care to GDMHA clients under a contract with the state. At the
14 hospital, staff strapped Bolmer to his bed and injected him with
15 Geodon, an anti-psychotic medication. After a staff member
16 discovered that Bolmer’s cell phone contained numerous text
17 messages between him and Kaminski, the hospital discharged Bolmer
18 two days later.
19 Phone records later revealed that Bolmer and Kaminski had a
20 history of communicating frequently, and that the communications
21 were initiated by both parties. Kaminski conceded that she used
22 poor judgment in her extensive communications with Bolmer, but
23 denied any sexual relationship.

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9
1 In October 2004, DMHAS fired Kaminski for violating DMHAS
2 Work Rule Number 18: “The development of sexual or otherwise
3 exploitive relationships between employees and clients is
4 prohibited.”
5 In February 2006, Bolmer sued Oliveira, DMHAS, and certain
6 others involved in his involuntary commitment. Bolmer claimed
7 (1) under 42 U.S.C. § 1983, that Oliveira violated the Fourth and
8 Fourteenth Amendments by ordering him committed; (2) that
9 Oliveira falsely imprisoned him in violation of Connecticut law;
10 and (3) that DMHAS violated Title II of the ADA by “stereotyping
11 Mr. Bolmer as an unreliable individual who manifested delusions
12 because of his diagnosed mental illness.”
13 In January 2008, Oliveira and DMHAS (together, the “State
14 Defendants”) moved for summary judgment. The State Defendants
15 and Bolmer both submitted expert affidavits on the issue of
16 whether Oliveira’s examination was consistent with generally
17 accepted medical standards. Not surprisingly, the State
18 Defendants’ expert believed that the examination was consistent,
19 and Bolmer’s expert did not.
20 In his response to the State Defendants’ motion, Bolmer
21 indicated that he did not intend to pursue his § 1983 Fourth
22 Amendment claim against Oliveira.

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10
1 In August 2008, the district court granted summary judgment
2 to Oliveira on Bolmer’s false imprisonment claim, but denied it
3 on the § 1983 and Title II claims. First, the court found that
4 Oliveira, as a state officer, was shielded from Bolmer’s false
5 imprisonment claim by sovereign immunity. The court stated:
6 Although Mr. Bolmer’s allegations, if true, could support
7 a finding of negligence on the part of Dr. Oliveira, he
8 points to no acts or statements which demonstrate malice
9 or wantonness. . . . The evidence which Mr. Bolmer has
10 marshaled in support of his claims may point to
11 indifference, but there is no evidence of extreme conduct
12 which could satisfy the intentionality required by the
13 Connecticut Supreme Court to eliminate Dr. Oliveira’s
14 immunity against suit on the state law claims in this
15 Court.
16 Bolmer v. Oliveira, 570 F. Supp. 2d 301, 317 (D. Conn. 2008).
17 Second, the district court denied summary judgment on
18 Oliveira’s qualified immunity defense to the § 1983 Fourteenth
19 Amendment claim. Bolmer’s claim was that Oliveira violated his
20 right to substantive due process by ordering him committed based
21 on a deficient examination. The district court applied Rodriguez
22 v. City of New York, 72 F.3d 1051 (2d Cir. 1995), which held that
23 an involuntary commitment violates substantive due process if the
24 decision to commit is based on “substantive and procedural
25 criteria that are . . . substantially below the standards
26 generally accepted in the medical community.” Id. at 1063.
27 Here, the parties’ experts based their opinions on differing

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11
1 versions of the facts, and disagreed on the applicable medical
2 standards. Thus, the question whether Oliveira’s decision fell
3 substantially below those standards remained for trial.
4 Third, the district court found that material issues of fact
5 also precluded summary judgment on DMHAS’s defense of Eleventh
6 Amendment immunity to the Title II claim. As the court saw it,
7 the issue turned on whether Congress’s abrogation of DMHAS’s
8 immunity to Bolmer’s Title II claim was appropriate. Under
9 United States v. Georgia, 546 U.S. 151 (2006), the abrogation was
10 valid if DMHAS violated both Title II and the Fourteenth
11 Amendment. Because there were material issues of fact as to
12 whether such violations occurred, the validity of Congress’s
13 abrogation could not be resolved on summary judgment.
14 Last, the district court denied summary judgment to Oliveira
15 on Bolmer’s Fourth Amendment claim without discussing the claim.
16 The State Defendants appeal the denial of summary judgment,
17 resting on the collateral order doctrine as the basis for our
18 jurisdiction. Specifically, Oliveira contends that he has
19 qualified immunity to the § 1983 substantive due process claim
20 for four reasons: (1) Bolmer’s expert offered insufficient
21 evidence of the applicable medical standards to create a genuine
22 issue of fact as to what those standards are; (2) Oliveira’s
23 conduct did not rise to the level of a substantive due process

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12
1 violation because it did not “shock the conscience” under County
2 of Sacramento v. Lewis, 523 U.S. 833 (1998); (3) Danbury Hospital
3 staff, and not Oliveira, were responsible for Bolmer’s
4 commitment; and (4) an involuntary commitment will not violate
5 substantive due process when a more specific constitutional
6 provision - here, the Fourth Amendment – applies.
7 Oliveira also argues that the district court should have
8 granted him summary judgment on Bolmer’s § 1983 Fourth Amendment
9 claim because the claim was abandoned.
10 DMHAS contends that the Eleventh Amendment bars litigation
11 of Bolmer’s Title II claim because he failed to show that DMHAS
12 acted with discriminatory animus or ill will under Garcia v.
13 S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98 (2d Cir.
14 2001), and therefore Congress’s abrogation of DMHAS’s Eleventh
15 Amendment immunity is invalid.
16 DISCUSSION
17 I. Appellate Jurisdiction and Standard of Review
18 Though neither party contests our appellate jurisdiction, we
19 are obligated to consider the issue sua sponte. Joseph v.
20 Leavitt, 465 F.3d 87, 89 (2d Cir. 2006).
21 Orders denying summary judgment are generally not
22 immediately appealable “final decisions” under 28 U.S.C. § 1291.
23 See Finigan v. Marshall, 574 F.3d 57, 60 n.2 (2d Cir. 2009).

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13
1 Pursuant to the collateral order doctrine, however, we have
2 jurisdiction over interlocutory appeals of orders denying claims
3 of qualified immunity and Eleventh Amendment immunity. Mitchell
4 v. Forsyth, 472 U.S. 511, 530 (1985) (qualified immunity); Puerto
5 Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.
6 139, 141 (1993) (Eleventh Amendment immunity). The principal
7 justification for allowing such appeals is that “‘[t]he
8 entitlement is an immunity from suit rather than a mere defense
9 to liability; and like an absolute immunity, it is effectively
10 lost if a case is erroneously permitted to go to trial.’” Puerto
11 Rico Aqueduct & Sewer Auth., 506 U.S. at 144 (quoting Mitchell,
12 472 U.S. at 526).
13 However, to avoid running afoul of the collateral order
14 doctrine’s requirement that a reviewable order “involve a
15 ‘clai[m] of right separable from, and collateral to, rights
16 asserted in the action,’” we may review immunity denials only to
17 the narrow extent they turn on questions of law. Mitchell, 472
18 U.S. at 527-30 (quoting Cohen v. Beneficial Indus. Loan Corp.,
19 337 U.S. 541, 546 (1949)); see Komlosi v. N.Y. State Office of
20 Mental Retardation and Developmental Disabilities, 64 F.3d 810,
21 814-15 (2d Cir. 1995). In short, where the district court denied
22 immunity on summary judgment because genuine issues of material
23 fact remained, we have jurisdiction to determine whether the

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14
1 issue is material, but not whether it is genuine. Jones v.
2 Parmley, 465 F.3d 46, 55 (2d Cir. 2006). Stated differently, we
3 may determine whether a defendant is entitled to immunity “on
4 stipulated facts, or on the facts that the plaintiff alleges are
5 true, or on the facts favorable to the plaintiff that the trial
6 judge concluded the jury might find.” Salim v. Proulx, 93 F.3d
7 86, 90 (2d Cir. 1996). But we may not review the district
8 court’s ruling that “the plaintiff’s evidence was sufficient to
9 create a jury issue on the facts relevant to the defendant’s
10 immunity defense.” Id. at 91. Cabined by these constraints, our
11 review is de novo. Jones, 465 F.3d at 55.
12 Where we have jurisdiction over an interlocutory appeal of
13 one ruling, we have the discretion to exercise pendent appellate
14 jurisdiction over other district court rulings that are
15 “‘inextricably intertwined’” or “‘necessary to ensure meaningful
16 review’” of the first. Ross v. Am. Express Co., 547 F.3d 137,
17 142 (2d Cir. 2008) (quoting Swint v. Chambers County Comm’n, 514
18 U.S. 35, 51 (1995)). We recognize, however, that “pendent
19 appellate jurisdiction should be exercised sparingly, if ever.”
20 Mancuso v. N.Y. State Thruway Auth., 86 F.3d 289, 292 (2d Cir.
21 1996).
22 Here, Defendants-Appellants assert the collateral order
23 doctrine as the sole basis for appellate jurisdiction. They are

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15
1 correct that the doctrine provides for jurisdiction to the extent
2 their appeal turns on questions of law related to their immunity
3 defenses. However, they ask us to delve deeper.
4 First, Defendants-Appellants offer their version of the
5 contested facts surrounding Bolmer’s commitment. We lack
6 jurisdiction to compare their factual evidence with Bolmer’s.
7 See Salim, 93 F.3d at 90-91. Indeed, Defendants-Appellants’
8 contention that Bolmer failed to provide evidence sufficient to
9 create an issue of fact as to the applicable medical standards
10 falls squarely within the category of evidence-sufficiency
11 arguments we may not review. See id. at 91; see also Grune v.
12 Rodriguez, 176 F.3d 27, 32 (2d Cir. 1999). We therefore dismiss
13 the appeal as to this argument, and confine our review to “the
14 facts favorable to [Bolmer] that the trial judge concluded the
15 jury might find,” including those it did not explicitly identify
16 but “‘likely assumed.’” Salim, 93 F.3d at 90 (quoting Johnson v.
17 Jones, 515 U.S. 304, 319 (1995)).
18 Second, Defendants-Appellants seek to reverse the denial of
19 summary judgment on Bolmer’s § 1983 Fourth Amendment claim. They
20 assert that the claim was abandoned. Defendants-Appellants do
21 not explain how the district court’s apparent denial of summary
22 judgment on this claim constitutes an appealable collateral
23 order, nor how the issue is “‘inextricably intertwined’” or

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Oliveira does state in his reply brief that by discussing1
perceived ambiguities in Rodriguez, Bolmer “has actually opened .
16
1 “‘necessary to ensure meaningful review’” of the immunity denials
2 such that we should exercise pendent jurisdiction. Ross, 547
3 F.3d at 142 (quoting Swint, 514 U.S. at 51). It was their duty
4 to do so. See Fed. R. App. P. 28(a)(4). Having failed to
5 explain a basis for appellate jurisdiction, and none being
6 apparent, we also dismiss the appeal to the extent it challenges
7 the denial of summary judgment on the Fourth Amendment claim.
8 II. Qualified Immunity
9 Government actors have qualified immunity to § 1983 claims
10 “‘insofar as their conduct does not violate clearly established
11 statutory or constitutional rights of which a reasonable person
12 would have known.’” Okin v. Vill. of Cornwall-On-Hudson Police
13 Dep’t, 577 F.3d 415, 432 (2d Cir. 2009) (quoting Harlow v.
14 Fitzgerald, 457 U.S. 800, 818 (1982)). As a state actor,
15 Oliveira is immune to Bolmer’s § 1983 substantive due process
16 claim if (1) the reviewable facts do not make out a violation of
17 Bolmer’s right to substantive due process, or (2) the right was
18 not clearly established at the time of Bolmer’s commitment. See
19 Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009). Oliveira
20 does not argue that Bolmer’s substantive due process right was
21 not clearly established. He is therefore entitled to qualified 1

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. . the door for Dr. Oliveria [sic] to make the argument that the
law was not clearly established.” (Reply Br. of Defendants-
Appellants at 13.) But even if this excuses Oliveira’s raising
the argument for the first time in his reply brief, the argument
itself is insufficiently explained to merit review. See Norton
v. Sam’s Club, 145 F.3d 114, 117-18 (2d Cir. 1998).
17
1 immunity only if, on the facts favorable to Bolmer that the
2 district court concluded a jury might find, he did not violate
3 Bolmer’s right to substantive due process.
4 The Due Process Clause of the Fourteenth Amendment has a
5 substantive component that bars certain state actions
6 “‘regardless of the fairness of the procedures used to implement
7 them.’” County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998)
8 (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).
9 Substantive due process prohibits states from involuntarily
10 committing nondangerous mentally ill individuals. See O’Connor
11 v. Donaldson, 422 U.S. 563, 575-76 (1975). It does not, however,
12 “require a guarantee that a physician’s assessment of
13 [dangerousness] be correct.” Rodriguez v. City of New York, 72
14 F.3d 1051, 1062 (2d Cir. 1995). Rather, we held in Rodriguez
15 that an involuntary commitment violates substantive due process
16 if the decision is made “on the basis of substantive and
17 procedural criteria that are . . . substantially below the
18 standards generally accepted in the medical community.” Id. at

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18
1 1063. What those standards are is a question of fact. Id.; see
2 also Olivier v. Robert L. Yeager Mental Health Ctr., 398 F.3d
3 183, 191-92 (2d Cir. 2005).
4 Some three years after our decision in Rodriguez, the
5 Supreme Court held in County of Sacramento v. Lewis that for
6 executive action to violate substantive due process, it must be
7 “so egregious, so outrageous, that it may fairly be said to shock
8 the contemporary conscience.” 523 U.S. at 847 n.8. The Court
9 indicated, however, that the shocks-the-conscience inquiry is not
10 a stand-alone test for determining whether particular executive
11 conduct violates substantive due process; rather, it provides a
12 framework for making such a determination. See id. at 847
13 (“While the measure of what is conscience shocking is no
14 calibrated yardstick, it does, as Judge Friendly put it, ‘poin[t]
15 the way.’” (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d
16 Cir. 1973))). Several principles support this framework.
17 First, “the constitutional concept of conscience shocking
18 duplicates no traditional category of common-law fault, but
19 rather points clearly away from liability, or clearly toward it,
20 only at the ends of the tort law’s spectrum of culpability.” Id.
21 at 848. Thus, “liability for negligently inflicted harm is
22 categorically beneath the threshold of constitutional due
23 process,” but “injuries . . . produced with culpability falling

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19
1 within the middle range, following from something more than
2 negligence but less than intentional conduct, such as
3 recklessness or gross negligence, is a matter for closer calls.”
4 Id. at 849 (internal quotation marks and citation omitted).
5 Second, whether particular executive action shocks the
6 conscience is highly context-specific.
7 “The phrase [due process of law] formulates a concept
8 less rigid and more fluid than those envisaged in other
9 specific and particular provisions of the Bill of Rights.
10 Its application is less a matter of rule. Asserted denial
11 is to be tested by an appraisal of the totality of facts
12 in a given case. That which may, in one setting,
13 constitute a denial of fundamental fairness, shocking to
14 the universal sense of justice, may, in other
15 circumstances, and in the light of other considerations,
16 fall short of such denial.”
17 Id. at 850 (quoting Betts v. Brady, 316 U.S. 455, 462 (1942)).
18 Thus, “concern with preserving the constitutional proportions of
19 substantive due process demands an exact analysis of
20 circumstances before any abuse of power is condemned as
21 conscience shocking.” Id.
22 In Lewis, a Sacramento County sheriff’s deputy attempted to
23 stop two teenage boys who were speeding on a motorcycle. Id. at
24 836. When the teenagers refused to pull over, a high-speed chase
25 ensued. The chase ended when the motorcycle tipped over during a
26 sharp turn. The pursuing deputy was unable to avoid skidding
27 into the motorcycle passenger, Phillip Lewis, at 40 miles per

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20
1 hour. Lewis was pronounced dead at the scene. Lewis’s family
2 sued the County, its sheriff’s department, and the deputy under
3 42 U.S.C. § 1983, claiming that the deputy’s conduct violated
4 Lewis’s right to substantive due process. Id. at 837. The case
5 reached the Supreme Court on the issue of what level of
6 culpability a law enforcement officer must reach to violate
7 substantive due process in a pursuit case. Id. at 839.
8 The Court held that “high-speed chases with no intent to
9 harm suspects physically or to worsen their legal plight do not
10 give rise to liability under the Fourteenth Amendment,
11 redressible by an action under § 1983.” Id. at 854. Analogizing
12 a high-speed chase to a prison riot, the court noted that in
13 neither instance was there time for a responding officer to
14 ponder, and thus deliberate indifference was an inappropriate
15 standard for determining whether the officer’s conduct shocked
16 the conscience. Id. at 851-54. A higher degree of culpability
17 was required because the officer was “supposed to act decisively
18 and show restraint at the same moment.” Id. at 853.
19 In this case, Oliveira contends that the district court
20 erred by applying Rodriguez’s medical-standards test instead of
21 determining whether Oliveira’s conduct shocked the conscience
22 under Lewis. We conclude that the district court did not err by
23 applying Rodriguez, as that case imposed a rule for determining

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21
1 when an involuntary commitment violates substantive due process
2 that is consistent with Lewis’s shocks-the-conscience framework.
3 In other words, a physician’s decision to involuntarily commit a
4 mentally ill person because he poses a danger to himself or
5 others shocks the conscience, thereby violating substantive due
6 process, when the decision is based on “substantive and
7 procedural criteria that are . . . substantially below the
8 standards generally accepted in the medical community.”
9 Rodriguez, 72 F.3d at 1063. The principles enunciated in Lewis
10 support our conclusion.
11 First, Rodriguez’s medical-standards test does not impose
12 constitutional liability for conduct that is merely negligent.
13 In requiring that the commitment decision be the product of
14 criteria substantially below those generally accepted in the
15 medical community, Rodriguez imposes liability for conduct that
16 is at least grossly negligent. Lewis does not preclude liability
17 for such middle-range culpability. See 523 U.S. at 849.
18 Oliveira contends, however, that the district court found
19 his conduct to be no more than negligent, and thus even if
20 Rodriguez provides the applicable rule, the district court erred
21 in applying the rule in this case. He points to the district
22 court’s language granting him summary judgment on Bolmer’s false
23 imprisonment claim. According to Oliveira, since the false

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22
1 imprisonment claim was based on the same conduct as the
2 substantive due process claim, the court’s finding precluded
3 liability on the latter. Oliveira reads too much into the
4 district court’s language. The court found that Bolmer’s
5 allegations “could support a finding of negligence” or
6 “indifference,” but not “malice or wantonness” sufficient to
7 overcome sovereign immunity. Bolmer v. Oliveira, 570 F. Supp. 2d
8 301, 317 (D. Conn. 2008). This does not constitute a finding
9 that Bolmer’s allegations could show negligence but nothing more.
10 Second, the circumstances of an involuntary commitment
11 support the application of Rodriguez’s medical-standards test.
12 See Lewis, 523 U.S. at 850. Like the New York law in Rodriguez,
13 the Connecticut statute governing Bolmer’s emergency involuntary
14 commitment requires that the decision to commit be made by a
15 physician. See Conn. Gen. Stat. § 17a-502. As we stated in
16 Rodriguez, “[i]mplicit in [the statute’s] requirement that the
17 decision be made by a physician is the premise that the decision
18 will be made in accordance with the standards of the medical
19 profession.” 72 F.3d at 1063. A substantial departure from
20 those standards shocks the conscience because it removes any
21 “reasonable justification” for intentionally depriving the person
22 of his or her liberty. Lewis, 523 U.S. at 846 (emphasis added);
23 see also Youngberg v. Romeo, 457 U.S. 307, 323 (1982) (holding

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23
1 that a mentally disabled person could show a violation of
2 substantive due process if the decision to deny him training and
3 rehabilitation “is such a substantial departure from accepted
4 professional judgment, practice, or standards as to demonstrate
5 that the person responsible actually did not base the decision on
6 such a judgment”).
7 Finally, the post-Lewis case law does not convince us that
8 Rodriguez should be overruled. The Ninth Circuit has adopted
9 Rodriguez’s objective medical-standards analysis, Jensen v. Lane
10 County, 312 F.3d 1145, 1147 (9th Cir. 2002), and we have
11 consistently applied it, see Olivier, 398 F.3d at 188-91; Hogan
12 v. A.O. Fox Mem. Hosp., No. 08-5315-cv, 2009 WL 2972870, at *2
13 (2d Cir. Sept. 18, 2009) (summary order). We are aware that
14 other circuits have employed different analyses. See Benn v.
15 Univ. Health Sys., Inc., 371 F.3d 165, 174-75 (3d Cir. 2004)
16 (explaining that, “in view of the events that led to [the
17 plaintiff’s] commitment and the steps taken after his arrival at
18 [the psychiatric hospital, the doctors’] conduct was not
19 conscience-shocking”); James v. Grand Lake Mental Health Ctr.,
20 Inc., No. 97-5157, 1998 WL 664315, at *7, *10 (10th Cir. Sept.
21 24, 1998) (order and judgment). However, the reasoning of those
22 cases does not persuade us that Rodriguez is no longer good law.

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We do not mean to exclude the possibility that a committing2
physician’s improper motive or state of mind could on its own
shock the conscience. See Olivier, 398 F.3d at 189-90
(discussing but declining to decide whether a commitment decision
could comport with medical standards but nevertheless violate
substantive due process because the committing physician acted
with “improper motive or intent”).
24
1 Oliveira points to Monaco v. Hogan, 576 F. Supp. 2d 335
2 (E.D.N.Y. 2008), in which the district court discussed Rodriguez
3 but concluded that a commitment decision shocked the conscience
4 under Lewis only if the committing physicians acted with
5 deliberate indifference. Id. at 350-51. We disagree with the
6 Monaco court’s reasoning, as it failed to perceive that Rodriguez
7 itself measures what is conscience shocking in this context. We
8 do not read Lewis to require a subjective analysis of the
9 physician’s state of mind.2
10 Having concluded that Rodriguez remains the proper test for
11 determining whether an involuntary commitment shocks the
12 conscience, we find no error here in the district court’s
13 application of Rodriguez. The court determined that genuine
14 issues of material fact existed both as to the facts surrounding
15 Bolmer’s commitment and the medical standards that should have
16 governed Oliveira’s conduct. Because the qualified immunity
17 issue turns on whether these facts show a substantive due process
18 violation, we agree that they are material. We lack jurisdiction

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25
1 to examine whether the factual issues are genuine. See Jones,
2 465 F.3d at 55.
3 Oliveira raises two additional challenges to the district
4 court’s denial of his qualified immunity claim. He argues first
5 that he could not have violated Bolmer’s right to substantive due
6 process because Danbury Hospital staff members, and not Oliveira,
7 were responsible for Bolmer’s commitment. Because Connecticut
8 law required the hospital to conduct its own examination of
9 Bolmer within 48 hours of his admission, see Conn. Gen Stat. §
10 17a-502(b), and presumably it did so, Oliveira contends that the
11 hospital’s decision to continue Bolmer’s commitment absolves him
12 of responsibility. This argument is specious. Oliveira examined
13 Bolmer, determined that he was dangerous and should be committed,
14 and signed the Emergency Certificate ordering Bolmer committed
15 “for no more than 15 days care and treatment in a mental
16 hospital.” At the very least, Oliveira is responsible for
17 depriving Bolmer of his liberty until the time of the hospital’s
18 determination.
19 Oliveira also claims that Bolmer’s substantive due process
20 claim cannot succeed because a more specific constitutional
21 provision – the Fourth Amendment – applies. We decline to
22 consider this argument as it was raised for the first time in

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26
1 Oliveira’s reply brief. See McCarthy v. S.E.C., 406 F.3d 179,
2 186 (2d Cir. 2005).
3 Because we cannot conclude as a matter of law that Oliveira
4 did not violate Bolmer’s right to substantive due process, we
5 affirm the denial of summary judgment on Oliveira’s qualified
6 immunity defense.
7 III. Eleventh Amendment Immunity
8 The Eleventh Amendment states that “[t]he Judicial power of
9 the United States shall not be construed to extend to any suit in
10 law or equity, commenced or prosecuted against one of the United
11 States by Citizens of another State, or by Citizens or Subjects
12 of any Foreign State.” U.S. Const. amend. XI. “Although the
13 Amendment, by its terms, bars only federal suits against state
14 governments by citizens of another state or foreign country, it
15 has been interpreted also to bar federal suits against state
16 governments by a state’s own citizens . . . .” Woods v. Rondout
17 Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir.
18 2006).
19 Eleventh Amendment immunity is not, however, immutable.
20 Under section five of the Fourteenth Amendment, Congress can
21 abrogate the immunity to enforce the substantive rights
22 guaranteed by the Fourteenth Amendment. See Tennessee v. Lane,
23 541 U.S. 509, 518 (2004). Congress has unambiguously purported

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27
1 to abrogate states’ immunity from Title II claims. See 42 U.S.C.
2 § 12202 (“A State shall not be immune under the eleventh
3 amendment to the Constitution of the United States from an action
4 in Federal or State court of competent jurisdiction for a
5 violation of this chapter.”). The extent to which Congress’s
6 abrogation is a constitutional exercise of its section five
7 authority has been the subject of much debate – some of it
8 esoteric.
9 In Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn,
10 280 F.3d 98 (2d Cir. 2001), we held that Congress had exceeded
11 its section five authority in enacting Title II, but that Title
12 II suits could be limited to circumstances in which it had not.
13 See id. at 110-11. We recognized that section five grants
14 Congress the authority to abrogate states’ immunity as to conduct
15 that actually violates the Fourteenth Amendment, as well as “‘a
16 somewhat broader swath of conduct’” that is constitutional but
17 which Congress may prohibit in order to remedy or deter actual
18 violations. Id. at 108 (quoting Bd. of Trs. of Univ. of Ala. v.
19 Garrett, 531 U.S. 356, 365 (2001)). We also recognized that this
20 latter, prophylactic authority is “subject to the requirement
21 that there be ‘congruence and proportionality between the
22 [violation] to be prevented or remedied and the means adopted to
23 that end.’” Id. (quoting City of Boerne v. Flores, 521 U.S. 507,

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28
1 520 (1997)). We therefore formulated a rule to limit Title II
2 suits to these two species of conduct.
3 In formulating this rule, we treated the plaintiff’s Title
4 II claim as grounded in the Equal Protection Clause of the
5 Fourteenth Amendment. See id. at 109 (discussing the Supreme
6 Court’s Equal Protection analysis in Garrett, 531 U.S. 356).
7 Since the Equal Protection Clause only proscribes disparate
8 treatment of the disabled that is not rationally related to a
9 legitimate government purpose, id., Title II suits could be
10 maintained against states only if the plaintiff showed “that the
11 Title II violation was motivated by discriminatory animus or ill
12 will based on the plaintiff’s disability,” id. at 111. And to
13 “lessen a plaintiff’s difficulty in establishing animus relative
14 to what would be demanded under traditional rational basis
15 review,” a plaintiff could “rely on a burden-shifting technique
16 similar to that adopted in McDonnell Douglas Corp. v. Green, 411
17 U.S. 792, 802-05 (1973), or a motivating-factor analysis similar
18 to that set out in Price Waterhouse v. Hopkins, 490 U.S. 228,
19 252-58 (1989).” Garcia, 280 F.3d at 112 (citations amended).
20 This rule, we reasoned, would reach conduct that failed rational
21 basis review and therefore violated Equal Protection, as well as
22 conduct that did not violate Equal Protection but which Congress

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29
1 could prohibit pursuant to its prophylactic authority. See id.
2 at 111-12.
3 Following our decision in Garcia, the Supreme Court decided
4 several cases concerning the extent to which Congress’s
5 abrogation of Eleventh Amendment immunity in Title II of the ADA
6 is constitutional. First, in Tennessee v. Lane the Court upheld
7 Congress’s abrogation in the context of courtroom accessibility.
8 541 U.S. at 531. It reasoned that in enacting Title II, Congress
9 sought to enforce not only Equal Protection, but also “a variety
10 of other basic constitutional guarantees, infringements of which
11 are subject to more searching judicial review.” Id. at 522-23.
12 With regard to courtroom accessibility, these guarantees included
13 litigants’ rights under the Due Process Clause of the Fourteenth
14 Amendment. See id. at 523. Thus, Title II was not wholly
15 premised on discrimination against the disabled that violates the
16 Equal Protection Clause. Among the decisions cited in support of
17 Title II’s enactment were cases concerning the mentally disabled.
18 The historical experience that Title II reflects is also
19 documented in this Court’s cases, which have identified
20 unconstitutional treatment of disabled persons by state
21 agencies in a variety of settings, including [1]
22 unjustified commitment, e.g., Jackson v. Indiana, 406
23 U.S. 715 (1972); [2] the abuse and neglect of persons
24 committed to state mental health hospitals, Youngberg v.
25 Romeo, 457 U.S. 307 (1982); and [3] irrational
26 discrimination in zoning decisions [concerning a home for
27 the mentally retarded], Cleburne v. Cleburne Living
28 Center, Inc., 473 U.S. 432 (1985).

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30
1 Lane, 541 U.S. at 524-25 (footnote omitted and citations
2 amended).
3 Next, in United States v. Georgia, 546 U.S. 151 (2006), the
4 Court reaffirmed that, “insofar as Title II creates a private
5 cause of action for damages against the States for conduct that
6 actually violates the Fourteenth Amendment, Title II validly
7 abrogates state sovereign immunity.” Id. at 159. Noting,
8 however, that members of the Court had disagreed regarding the
9 scope of Congress’s prophylactic authority, and that it was
10 unclear what conduct the plaintiff intended to allege in support
11 of his Title II claims, the Court remanded for the lower court to
12 determine,
13 on a claim-by-claim basis, (1) which aspects of the
14 State’s alleged conduct violated Title II; (2) to what
15 extent such misconduct also violated the Fourteenth
16 Amendment; and (3) insofar as such misconduct violated
17 Title II but did not violate the Fourteenth Amendment,
18 whether Congress’s purported abrogation of sovereign
19 immunity as to that class of conduct is nevertheless
20 valid.
21 Id. at 158-59.
22 Here, DMHAS contends that the district court erred by not
23 requiring that Bolmer show discriminatory animus or ill will
24 under Garcia. Bolmer responds that Garcia only applies to Title
25 II claims based on Equal Protection, and since his claim is based
26 solely on substantive due process, the district court properly

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Given Bolmer’s explicit rejection of any Equal Protection3
basis for his Title II claim (Br. of Plaintiff-Appellee at 38-39
& n.9), we decline amici’s request to re-examine Garcia in light
of Lane and Georgia (Br. of Amici at 10-15).
31
1 disregarded Garcia and decided the issue under Georgia. We agree
2 with Bolmer.3
3 The threshold question is whether Congress’s abrogation may
4 be justified by its enforcement of the substantive due process
5 right not to be involuntarily committed absent a danger to self
6 or others. Under Lane, we think the answer to this question is
7 yes. The Court in Lane found that rights guaranteed by the Due
8 Process Clause were among the “variety of other basic
9 constitutional guarantees” Congress sought to enforce in Title
10 II. 541 U.S. at 522-23. And the history of unconstitutional
11 conduct reflected in Title II includes unconstitutional treatment
12 of the mentally disabled, including their unjustified commitment.
13 See id. at 524-25.
14 The next question is whether Garcia’s discriminatory animus
15 test is applicable where Congress’s abrogation of Eleventh
16 Amendment immunity is justified, if at all, by its enforcement of
17 the substantive due process right not to be involuntarily
18 committed absent a danger to self or others. Garcia’s
19 discriminatory animus requirement was designed to reach Title II
20 violations that also violate Equal Protection because they fail

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32
1 rational-basis review, as well as the broader swath of
2 constitutional conduct Congress could prohibit as necessary to
3 remedy and deter Equal Protection violations. See Garcia, 280
4 F.3d at 111-12. The test for whether an involuntary commitment
5 violated substantive due process is not rational-basis review;
6 rather, a commitment violates substantive due process if the
7 decision was made “on the basis of substantive and procedural
8 criteria that are . . . substantially below the standards
9 generally accepted in the medical community.” Rodriguez, 72 F.3d
10 at 1063. Whether or not Garcia survives Lane and Georgia, a
11 question we do not reach, it is quite clear that Garcia’s
12 discriminatory animus requirement for Equal Protection-based
13 claims cannot be applied to claims based solely on the
14 substantive due process right Bolmer alleges was violated here,
15 since the test for whether the constitution was violated in each
16 case is distinct.
17 Having determined that Garcia is not applicable here, a
18 question remains as to how to analyze Congress’s abrogation of
19 DMHAS’s Eleventh Amendment immunity to Bolmer’s Title II claim.
20 Under Georgia, Congress’s abrogation of DMHAS’s Eleventh
21 Amendment immunity to Bolmer’s Title II claim is valid if DMHAS
22 violated (1) Title II and (2) Bolmer’s right to substantive due
23 process. See 546 U.S. at 158-59. Because we cannot conclude as

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33
1 a matter of law that DMHAS did not violate Title II or Bolmer’s
2 right to substantive due process, we affirm the denial of summary
3 judgment as to this defense.
4 First, the reviewable facts may support Title II liability.
5 To establish a violation of Title II, Bolmer must show that (1)
6 he is a “qualified individual with a disability,” (2) DMHAS is
7 subject to the ADA, and (3) he was, “by reason of such
8 disability, . . . excluded from participation in or . . . denied
9 the benefits of the services, programs, or activities of a public
10 entity, or . . . subjected to discrimination by any such entity.”
11 42 U.S.C. § 12132; see Henrietta D. v. Bloomberg, 331 F.3d 261,
12 272 (2d Cir. 2003). The first two elements are not in dispute.
13 Bolmer contends that he has satisfied the third because DMHAS
14 discriminated against him when it concluded, based on a
15 stereotyped view of the disabled, that his relationship with
16 Kaminski was a delusion, and committed him on the basis of that
17 conclusion.
18 Both sides address the discrimination question under the
19 mixed-motive discrimination framework erected in Price Waterhouse
20 v. Hopkins, 490 U.S. 228 (1989). However, it is questionable
21 whether Title II discrimination claims can proceed on a mixed-
22 motive theory after the Supreme Court’s decision in Gross v. FBL
23 Financial Services, Inc., 129 S. Ct. 2343 (2009), where the Court

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34
1 held that the Age Discrimination in Employment Act of 1967
2 (“ADEA”), 29 U.S.C. § 621 et seq., does not authorize a mixed-
3 motive age-discrimination claim. 129 S. Ct. at 2350. Instead,
4 age discrimination must be the “but-for” cause of an adverse
5 employment action for ADEA liability to attach. Id. Ultimately,
6 we need not determine whether Bolmer may proceed with his Title
7 II claims on a mixed-motive theory, because even if Gross
8 requires him to show that DMHAS’s discriminatory stereotyping was
9 the “but-for” cause of his commitment, we cannot conclude as a
10 matter of law that he has failed to satisfy this more stringent
11 causation standard.
12 According to Bolmer, he had a sexual relationship with
13 Kaminski that no one would believe had occurred. GDMHA staff
14 incorrectly concluded that the relationship was a delusion, and
15 made Bolmer return to the GDMHA facility for an unnecessary
16 mental examination. Upon his return, Bolmer spoke loudly but did
17 not yell. Oliveira, who was unfamiliar with Bolmer, conducted a
18 mental examination that was non-individualized and cursory at
19 best; it involved little questioning and lasted only five
20 minutes. Throughout the examination, GDMHA staff looked at
21 Bolmer as if he were crazy. Oliveira rolled his eyes. Bolmer
22 attempted to convey that he was not angry by stating that “if
23 [he] was really angry that [he] would pick up the chair in the

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35
1 room and throw it.” Oliveira then ordered him committed to
2 Danbury Hospital. The hospital held Bolmer for two days,
3 releasing him only after discovering evidence on Bolmer’s cell
4 phone indicating that his relationship with Kaminski was not a
5 delusion.
6 These allegations could support a conclusion that (1) Bolmer
7 had a sexual relationship with Kaminski, (2) DMHAS staff
8 incorrectly assumed that the relationship was a delusion based on
9 a stereotyped view of the mentally ill, and (3) but for this
10 assumption, Bolmer would not have been committed. Thus, even if
11 Gross prohibits Bolmer from proceeding on a mixed-motive theory,
12 he has adequately alleged discrimination that was the but-for
13 cause of his commitment.
14 Second, as discussed above, the reviewable facts could show
15 that DMHAS employee Oliveira violated Bolmer’s right to
16 substantive due process, thereby satisfying the second prong of
17 Georgia.
18 Finally, as Bolmer’s success on the first and second prongs
19 of Georgia would make an analysis under the third prong
20 unnecessary, we decline to address that prong here.
21 In sum, we hold with regard to DMHAS’s Eleventh Amendment
22 immunity defense that (1) Garcia is not applicable when
23 Congress’s abrogation is supported by its enforcement of the

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36
1 substantive due process right not to be involuntarily committed
2 absent a danger to self or others; and (2) under Georgia and
3 Lane, Congress validly abrogated states’ Eleventh Amendment
4 immunity where the same conduct by the defendant violated both
5 Title II and substantive due process. Because we cannot conclude
6 as a matter of law that DMHAS did not violate Title II or
7 Bolmer’s right to substantive due process, we affirm the denial
8 of summary judgment on this defense.
9 CONCLUSION
10 For the foregoing reasons, we DISMISS the appeal to the
11 extent it (1) contests the district court’s determination that
12 Bolmer put forth sufficient evidence of the relevant medical
13 standards to create a material issue of fact, and (2) argues that
14 Bolmer abandoned his Fourth Amendment claim. We AFFIRM the
15 denial of summary judgment on Defendants-Appellants’ qualified
16 immunity and Eleventh Amendment immunity defenses.

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