Taranov v. Area Agency of Greater Nashua et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Lidia Taranov, by and through
Tatiana Taranov and Leonid Taranov,
Next Friends
v. 	Case No. 21-cv-995-PB
Area Agency of Greater Nashua, a/k/a
Region VI Area Agency d/b/a
Gateways Community Services, Inc.;
Sandra Pelletier; and Mindy Huckins
REPORT AND RECOMMENDATION
Before the court is the complaint (Doc. No. 1) filed pro se
on behalf of Lidia Taranov (“plaintiff”), by Leonid Taranov and
plaintiff’s adult daughter Tatiana Taranov, as next friends.
The complaint is before the court for preliminary review,
pursuant to LR 4.3(d)(2) and 28 U.S.C. § 1915(e).
Preliminary Review Standard
This court subjects complaints filed in forma pauperis to
preliminary review under LR 4.3(d)(2) and may dismiss complaints
that are frivolous or malicious, fail to state a claim upon
which relief can be granted, or seek damages from defendants who
are immune from such relief. 	See id.; see also 28 U.S.C.
§ 1915(e)(2). 	The court construes pro se complaints liberally
in conducting that preliminary review. 	See Erickson v. Pardus,
551 U.S. 89, 94 (2007). 	Disregarding any legal conclusions, the
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court considers whether the factual content in the complaint,
and inferences reasonably drawn therefrom, taken as true, state
a facially plausible claim to relief. 	Hernandez-Cuevas v.
Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)).
Background
Plaintiff is blind and cognitively disabled. 	New
Hampshire’s Medicaid Waiver for home and community-based
services for individuals with acquired brain disorders (“ABD
Waiver”) has covered the cost of nursing and personal care
services she receives in her home. 	Defendant Gateway Community
Services (“Gateway”) is the private non-profit area agency that
contracts with the State of New Hampshire to provide such
services for eligible individuals, such as plaintiff, within
Gateway’s geographic service area, in accordance with the terms
of each enrolled recipient’s Individual Service Agreement.
For fifteen years prior to July 14, 2021, plaintiff’s
Individual Service Agreement allowed her to receive “adult
foster care services” in her home. 	Beginning on July 14, 2021,
however, Gateway terminated plaintiff’s access to Medicaid ABD
Waiver reimbursement for such services, maintaining that the
services were not covered. 	Since that date, plaintiff has paid
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privately for such services, but, she alleges, her resources are
exhausted.
Plaintiff filed this action in November 2021 against
defendants Gateway, Sandra Pelletier (Gateway’s President and
CEO), and Gateway’s Senior Director of Family and Participant-
Directed Services, Mindy Huckins. 	Plaintiff claims that the
defendants terminated her access to Medicaid ABD Waiver
benefits, in violation of 42 U.S.C. § 1983 and Title II of the
Americans with Disabilities Act (“ADA”). 	In a separate Order
issued this date, the court has directed defendants to file an
answer or other response to the complaint.
In the Order issued along with this Report and
Recommendation, the Court has denied plaintiff’s request for a
temporary restraining order and has otherwise taken the motion
for a preliminary injunction (Doc. No. 5) under advisement.
Also in that Order, the plaintiff has been directed to file a
notice of appearance of counsel to represent her in this action.
Discussion
Liberally construed, the complaint asserts an ADA Title II
claim, as well as claims arising under 42 U.S.C. § 1983. 	Title
II provides 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,
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programs, or activities of a public entity[.]” 42 U.S.C.
§ 12132. 	“Public entities may not engage in discrimination or
deny services either directly or indirectly through agreements
with licensees. 	See 28 C.F.R. § 35.130(a), (b)(1). 	However,
private entities’ own programs and actions are not covered by
Title II.” 	Woods v. Tompkins Cty., 804 F. App’x 94, 96 (2d Cir.
2020).
None of the defendants named in the complaint is a public
entity. 	See Woods v. Tompkins Cty., No. 516CV00007LEKTWD, 2016
U.S. Dist. LEXIS 3121, at *6, 2016 WL 11477517, at *3 (N.D.N.Y.
Jan. 7, 2016) (private entity that contracted with County to
provide personal care aides to eligible individuals was not
liable for alleged violations of Title II, as contractual
relationship with County did not convert a private entity into a
public entity (citing Green v. New York, 465 F.3d 65, 79 (2d
Cir. 2006) (private hospital performing services pursuant to
contract with municipality was not instrumentality of government
or public entity under ADA))), R&R adopted, 2016 U.S. Dist.
LEXIS 25158, 2016 WL 796092 (N.D.N.Y. Feb. 29, 2016); see also
Edison v. Douberly, 604 F.3d 1307, 1310 (11th Cir. 2010)
(“private corporation is not a public entity merely because it
contracts with a public entity to provide some service”).
Accordingly, and without expressing an opinion as to the
viability of any other claim asserted in the Complaint (Doc. No.
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1), the undersigned magistrate judge recommends that the
district judge dismiss the ADA Title II claims asserted in the
complaint.
This Court has sua sponte extended the typical fourteen-day
deadline for objecting to this Report and Recommendation, cf.
Fed. R. Civ. P. 72(b)(2), to accommodate the Order that directs
plaintiff to obtain counsel by January 28, 2022, so that counsel
may respond to the Report and Recommendation on the date he or
she appears on plaintiff’s behalf.
Conclusion
For the foregoing reasons, the district judge should
dismiss plaintiff’s ADA Title II claims. 	Any objections to this
Report and Recommendation must be filed by January 28, 2022.
That objection period may be further extended upon motion.
Failure to file objections within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
December 1, 2021
cc: 	Lidia Taranov, by and through
Leonid Taranov, pro se
Tatiana Taranov, pro se
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