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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ROSETTA DEMBY, ET AL. : : v. : CIVIL NO. CCB-06-1816 : MARYLAND DEPARTMENT OF : HEALTH & MENTAL HYGIENE, ET AL. : ...o0o... MEMORANDUM Now pending is the defendants' motion to dismiss (docket entry no. 46) the amended complaint filed November 9, 2006 on behalf of plaintiffs Rosetta Demby, Shirley Williams, and Leila Johnson; and the motions for leave to file second amended complaints by Johnson (docket entry no. 138) and by Demby and Williams (docket entry no. 139). The issues have been fully briefed and no oral hearing is necessary. The majority of my rulings are consistent with, and explained by, the opinion issued on March 31, 2008 in the related case of Alston v. MDHMH, CCB-05-2104. Demby and Williams Count I - ADA Discrimination This claim is brought under Title II of the ADA not as an employment claim but rather alleging that the plaintiffs, as clients of the Sheltered Workshop, and beneficiaries of the state's services, were discriminated against in the provision of those services because of their disability. See Baird v. Rose, 192 F.3d 462, 467 (4th Cir. 1999). The State is not immune from valid Title II claims under the Eleventh Amendment. U.S. v. Georgia, 546 U.S. 151, 159 (2006). Leave to amend will be granted as to Count I.

Count II - ADA Retaliation The plaintiffs allege retaliation against the state defendants under the ADA. The question is whether Eleventh Amendment immunity applies. While I relied on Demshki v. Monteith, 255 F.3d 986 (9th Cir. 2001) in Alston in finding that the retaliation provision of the ADA did not abrogate the state's immunity, Demby and Williams correctly distinguish Demshki in that it applied to retaliation related to a Title I claim, not a Title II claim. 255 F.3d at 988. No specific authority establishing Eleventh Amendment immunity in a Title II retaliation claim has been cited by defendants, and in the only cases I have found addressing this discrete issue courts have found such immunity not to apply. See Mendez-Vazquez v. Tribunal General De Justicia, 477 F. Supp. 2d 406, 411-13 (D. P.R. 2007) (dismissing an ADA Title II employment discrimination claim on Eleventh Amendment immunity grounds but allowing a related retaliation claim, brought under Title V, to proceed); Sarkissian v. W. Va. Univ. Bd. of Governors, 2007 WL 1308978, *8 (N.D.W.Va. May 3, 2007) (unpublished) (finding a state university not to be entitled to Eleventh Amendment immunity from plaintiff's Title II retaliation claims brought under Title V). Accordingly, insofar as Demby and Williams allege they were threatened by Turner, and Demby was fired, because of their participation in the law enforcement investigation initiated by Merle Warfle (2d Amd. Cplt.

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