Levine v. Centers for Care, LLC et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________________
RICHIE FOSTER LEVINE,
Plaintiff,
v. 	1:25-cv-1789
(BKS/CBF)
CENTERS FOR CARE, LLC; CLR TROY, LLC,
Defendants.
_________________________________________________
APPEARANCES:
RICHIE FOSTER LEVINE
Plaintiff, pro se
105 Washington Street 307
Watertown, NY 13601
CARLA B. FREEDMAN, United States Magistrate Judge
REPORT-RECOMMENDATION AND ORDER
I. 	INTRODUCTION
The Clerk has sent to the Court for review a complaint submitted by pro se plaintiff
Richie Foster Levine (“Plaintiff” or “Levine”) alleging violations of 42 U.S.C. § 1983, the
Federal Nursing Home Reform Act of 1987, the Americans with Disabilities Act, Title VI of the
Civil Rights Act of 1964, the False Claim Act, Section 1557 of the Affordable Care Act, Section
504 of the Rehabilitation Act, the Emergency Medical Treatment & Active Labor Act, New York
State Human Rights Law, New York Civil Rights Law, and New York common law. Dkt. No. 1
(“Compl.”). Plaintiff also submitted a motion to proceed in forma pauperis (“IFP”). Dkt. No. 2.
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II. 	IFP APPLICATION
Plaintiff has not paid the filing fee for this action and seeks leave to proceed IFP. Dkt.
No. 2. Upon review, Plaintiff’s IFP application demonstrates economic need. See id. Therefore,
he is granted permission to proceed IFP.1
III. 	DISCUSSION
A. 	Governing Legal Standard
Section 1915 of Title 28 requires a district court to dismiss an in forma pauperis
complaint if the action is frivolous or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is immune from such relief. See 28
U.S.C. § 1915A(b)(1)-(2); § 1915(e)(2)(B)(i)-(iii); Livingston v. Adirondack Beverage Co., 141
F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint, or portion thereof, when
the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court determines
at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
While the law mandates dismissal on any of these grounds, the Court is obliged to
construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret
them to raise the “strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citation omitted, emphasis in
original). A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007); see also Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous’ when
1 Although his IFP application has been granted, Plaintiff will still be required to pay fees that he
may incur in this action, including copying and/or witness fees.
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either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an
indisputably meritless legal theory.”).
Additionally, when reviewing a complaint, a court may look to the Federal Rules of Civil
Procedure. See, e.g., Cole v. Smrtic, No. 1:24-CV-00847 (MAD/CFH), 2024 WL 4870495, at *2
(N.D.N.Y. Nov. 21, 2024) (explaining, “special solicitude for pro se pleadings has its limits,
because pro se pleadings still must comply with . . . the Federal Rules of Civil Procedure . . . .”)
(internal quotations and citation omitted), report and recommendation adopted, 2025 WL
247901 (N.D.N.Y. Jan. 21, 2025). To survive dismissal for failure to state a claim, a complaint
must contain a short and plain statement of the claim showing that the pleader is entitled to relief.
Fed. R. Civ. P. 8(a)(2). This short and plain statement of the claim must be “plausible on its
face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In determining whether a complaint states a claim upon which relief may be granted, “the
court must accept the material facts alleged in the complaint as true and construe all reasonable
inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994)
(citations omitted). However, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.
Moreover, a court should not dismiss a pro se complaint “without granting leave to
amend at least once when a liberal reading of the complaint gives any indication that a valid
claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)
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(citation and internal quotation marks omitted). However, an opportunity to amend is not
required where “the problem with [the plaintiff’s] causes of action is substantive” such that
“better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
B. 	Background
Plaintiff brings this action against defendant Centers for Care, LLC doing business as
Centers Health Care and defendant CLR Troy, LLC doing business as Troy Center for
Rehabilitation and Nursing (together “Defendants”). See generally Compl. Plaintiff alleges that
in January 2025, Defendants discriminated against him in violation of federal and New York
state law when he was “confined” at the Troy Center for Rehabilitation and Nursing facility, a
public accommodation owned and operated by Defendants, against his will. Id. ¶ 1.
Specifically, Plaintiff, who is a “wheelchair disabled individual” and Jewish, claims Defendants
discriminated against him because of his disability, religion, and national origin, failed to provide
reasonable accommodations, failed to provide accessible services, and retaliated against him
when he complained about this discrimination. Id. ¶¶ 1, 2, 30. Plaintiff also asserts common law
claims against Defendants related to his confinement at the facility. Id. Plaintiff seeks monetary,
injunctive, and declaratory relief. Id.
C. 	Analysis
For the reasons explained below, the Court recommends that some of Plaintiff’s claims be
dismissed pursuant to 28 U.S.C. § 1915(e) and that Defendants be directed to respond to
Plaintiff’s remaining claims.
1. 	28 U.S.C. § 1983
Plaintiff purports to bring claims pursuant to 42 U.S.C. § 1983. See Compl. ¶¶ 72-78.
Plaintiff avers he was “confined” at the Defendants’ facility “against his will.” Id. ¶ 29. Plaintiff
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claims Defendants are “federally funded” and “regulated” by the state, and “acted similar to state
actors who run a jail/prison by carrying out such actions against Levine by admitting him and
refusing to let him leave the facility freely and forcing him to eat non-kosher food.” Id. ¶¶ 2, 8,
60, 64, 72-78.
“Because the United States Constitution regulates only the Government, not private
parties, a litigant claiming that his constitutional rights have been violated must first establish
that the challenged conduct constitutes state action.” Flagg v. Yonkers Sav. & Loan Ass’n, FA,
396 F.3d 178, 186 (2d Cir. 2005) (internal quotations and citation omitted). Therefore, “[t]o
state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged conduct
(1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a
right, privilege, or immunity secured by the Constitution or laws of the United States.” Whalen
v. Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865,
875-76 (2d Cir. 1994)); see also Bennett v. Bailey, No. 5:20-CV-0903 (GTS/ATB), 2020 WL
5775940, at *2 (N.D.N.Y. Aug. 17, 2020) (“The requirement that the defendant acted under
‘color of state law’ is jurisdictional.”) (citation omitted), report and recommendation adopted,
2020 WL 5775231 (N.D.N.Y. Sept. 28, 2020). “Section 1983 itself creates no substantive rights;
it provides only a procedure for redress for the deprivation of rights established elsewhere.”
Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999) (citing City of Oklahoma City v. Tuttle, 471
U.S. 808, 816 (1985)) (additional citation omitted).
Here, the complaint is entirely devoid of any suggestion of state action. See generally
Compl. Contrary to Plaintiff’s assertion, “[a] private entity does not become a state actor merely
because it (i) performs under a state contract, (ii) accepts state or federal funds, or (iii) is subject
to state regulation.” Roberts v. New York Presbyterian Hosp., Queens, No. 24-CV-1352, 2024
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WL 1413030, at *2 (E.D.N.Y. Apr. 2, 2024) (citing Cranley v. Nat’l Life Ins. Co. of Vt., 318
F.3d 105, 112 (2d Cir. 2003) (“A finding of state action may not be premised solely on the
private entity’s creation, funding, licensing, or regulation by the government.”)); see also
Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974) (“The mere fact that a business is
subject to state regulation does not by itself convert its action into that of the State.”); Roberts v.
Healthfirst, No. 24-CV-1556, 2024 WL 1413032, at *2 (E.D.N.Y. Apr. 2, 2024) (“A defendant’s
affiliation with Medicaid programs does not make that defendant a state actor.”); Houston v.
Highland Care Ctr., Inc., No. 23-CV-8186, 2024 WL 638721, at *2 (E.D.N.Y. Jan. 26, 2024)
(“The defendant is not a state actor simply because it participated in Medicare and Medicaid
programs.”); Syville v. City of New York, No. 22-CV-8009, 2023 WL 8258020, at *5 (S.D.N.Y.
Nov. 29, 2023) (“The fact that an entity receives public funds does not turn private action into
state action.”); Lagueux v. Bridgeport Hosp. Sch. of Nursing, No. 11-cv-01933, 2013 WL
1310557, at *4 (D. Conn. Mar. 27, 2013) (“Although the complaint contains references to federal
funding received by one or more of the defendants, such funding does not demonstrate that those
defendants were state actors.”).
Moreover, in general, “private actors and institution,” such as hospitals and nursing
homes, “will not be considered a state actor.” Rule v. Braiman, No. 1:23-CV-01218
(BKS/CFH), 2024 WL 4042135, at *13 (N.D.N.Y. Sept. 4, 2024) (internal quotations and
citation omitted); see also Fisher v. Glens Falls Hosp., No. 1:25-CV-831 (AJB/DJS), 2025 WL
2324128, at *2 (N.D.N.Y. July 15, 2025) (explaining, while private parties, such as hospitals and
nursing homes “generally are not state actors, their conduct can be attributed to the state for
section 1983 purposes if ‘(1) the State compelled the conduct, (2) there is a sufficiently close
nexus between the State and the private conduct, or (3) the private conduct consisted of activity
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that has traditionally been the exclusive prerogative of the State,’” however, “[t]he activities of
private hospitals and their officers typically do not satisfy any of these tests.”) (citing Hogan v.
A.O. Fox Mem’l Hosp., 346 F. App’x 627, 629 (2d Cir. 2009)) (internal quotations omitted),
report and recommendation adopted, 2025 WL 2323523 (N.D.N.Y. Aug. 12, 2025).
Accordingly, the allegations in Plaintiff’s complaint are insufficient to state a claim under
Section 1983. See, e.g., Fisher, 2025 WL 2324128, at *2; Guillory v. Bishop Nursing Home, No.
5:21-CV-410 (MAD/ATB), 2021 WL 1535474, at *2 (N.D.N.Y. Apr. 19, 2021) (dismissing §
1983 claim against privately owned, for-profit care facility), report and recommendation
adopted, 2021 WL 2431259 (N.D.N.Y. June 15, 2021).
“Since it is the duty of the plaintiff to allege state action on the part of the defendant
named in a complaint, a court may dismiss an action under 28 U.S.C. § 1915(e) where a plaintiff
fails to plead such a nexus.” Denes v. Glens Falls Hosp., No. 1:05 CV 0838 (GLS/DRH), 2005
WL 2033489, at *2 (N.D.N.Y. Aug. 17, 2005). Therefore, it is recommended that Plaintiff’s
Section 1983 claims be dismissed pursuant to 28 U.S.C. § 1915(e).
2. 	Federal Nursing Home Reform Act of 1987 (“FNHRA”)
Plaintiff purports to bring a claim under the FNHRA. See Compl. ¶ 78. However, “the
FNHRA does not provide ‘a private right of action against private parties,’ including private
nursing homes.” Ferrari v. Cuomo, No. 23 CIV. 7715, 2025 WL 965131, at *12 (S.D.N.Y. Mar.
31, 2025) (quoting Zietek v. Pinnacle Nursing & Rehab Ctr., No. 21 Civ. 5488, 2024 WL
243436, at *5 (S.D.N.Y. Jan. 23, 2024) (“[T]he Nursing Home Reform Act’s provisions do not
confer a right of action on [the plaintiff] that can be enforced against a private nursing home[.]”
(citing Prince v. Dicker, 29 F. App’x 52, 54 (2d Cir. 2002))).
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As discussed above, Defendants are private actors. Therefore, the Court recommends
that Plaintiff’s FNHRA claim be dismissed pursuant to 28 U.S.C. § 1915(e).
3. 	False Claim Act (“FCA”)
Plaintiff purports to bring a “whistleblower” claim under the FCA because Defendants
“knowingly presented false/fraudulent claims for payment of Plaintiff’s stay to Medicaid for
reimbursement” and “benefitted by billing for inflated services which resulted in financial
misconduct.” See Compl. ¶¶ 12, 98-107.
An action under the FCA imposes civil liability on any person who “knowingly presents,
or causes to be presented, to an officer or employee of the United States Government . . . a false
or fraudulent claim for payment or approval.” 31 U.S.C. § 3729(a). Such suits may be brought
by the federal government, or by a private person on behalf of the United States. 31 U.S.C. §
3730(a), (b)(1); see United States ex rel. Eisenstein v. City of New York, 556 U.S. 928, 932
(2009). However, because a qui tam action under the FCA is brought in the name of the United
States, which remains the real party in interest, a private individual cannot bring such an action
pro se. United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 93 (2d Cir. 2008)
(“Because False Claims Act causes of action are not personal to relators, they are statutorily
barred from bringing such actions pro se.”).
In this case, Plaintiff proceeds without counsel. Accordingly, the Court recommends that
Plaintiff’s FCA claim be dismissed pursuant to 28 U.S.C. § 1915(e).2
2 See Bonsell v. Muldowney, No. 25-CV-1170 (LLS), 2025 WL 2042228, at *3 (S.D.N.Y. July 17,
2025) (“If Plaintiff wishes to pursue a claim under the FCA, asserting claims involving fraud on
the United States, she must bring a separate action in which she is represented by counsel.”).
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4. 	Emergency Medical Treatment & Active Labor Act (“EMTALA”)
Plaintiff purports to assert a claim under EMTALA. See Compl., ¶¶ 28-38, 128-38.
“EMTALA, commonly referred to as the ‘Patient Anti-Dumping Act,’ applies to all hospitals that
participate in the federal Medicare program and that have emergency departments.” Jones v.
Beth Israel Hosp., No. 1:17-CV-3445, 2018 WL 1779344, at *7 (S.D.N.Y. Apr. 12, 2018)
(emphasis added) (quoting Hardy v. N.Y. City Health & Hosp. Corp., 164 F.3d 789, 792 (2d Cir.
1999)). Specifically, EMTALA requires that “if a patient comes to a hospital emergency
department and requests treatment for a medical condition, the hospital must screen the patient
to determine if he has an emergent condition and examine and treat a patient in such condition
‘as may be required to stabilize the medical condition’ or provide for the safe transfer of the
patient to another hospital.” Lorenz v. Managing Dir., St. Luke’s Hosp., No. 09-cv-8898, 2010
WL 4922267, at *8 (S.D.N.Y. Nov. 5, 2010) (emphasis added) (quoting 42 U.S.C. § 1395dd(a),
(b)(1)), report and recommendation adopted, 2010 WL 4922541 (S.D.N.Y. Dec. 2, 2010).
To state a claim under EMTALA, a plaintiff must allege that he “went to the emergency
room of a participating hospital seeking treatment for a medical condition, and that the hospital .
. . discharged or transferred h[im] before such [emergency medical] condition had been
stabilized.” Brenord v. Cath. Med. Ctr. of Brooklyn & Queens, Inc., 133 F. Supp. 2d 179, 185
(E.D.N.Y. 2001) (emphasis added) (citing Fisher by Fisher v. New York Health & Hosps. Corp.,
989 F. Supp. 444, 448 (E.D.N.Y. 1998)); see, e.g., Neeseman v. Mt. Sinai W., No. 17 CIV. 1766,
2018 WL 626358, at *5 (S.D.N.Y. Jan. 30, 2018) (“It is clear that EMTALA does not apply to all
health care facilities; it applies only to participating hospitals with emergency departments.”).
Here, Plaintiff has alleged no facts plausibly showing Defendants are a “participating
hospital” with an “emergency department” under the meaning of EMTALA. See Compl., ¶¶ 3-4.
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Therefore, the Court recommends that Plaintiff’s EMTALA claim be dismissed pursuant to 28
U.S.C. § 1915(e).
5. 	Plaintiff’s Remaining Claims
At this early stage of the proceeding, and mindful of the Second Circuit’s direction that a
pro se plaintiff’s pleadings must be liberally construed, see Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185, 191 (2d Cir. 2008), the Court recommends that Defendants be directed to respond
to Plaintiff’s remaining claims. In so recommending, the Court expresses no opinion as to
whether these claims can withstand a properly filed dispositive motion.
IV. 	CONCLUSION
WHEREFORE, based on the findings above, it is hereby
ORDERED, that Plaintiff’s motion to proceed IFP (Dkt. No. 2) is GRANTED, and it is
further
RECOMMENDED, that Plaintiff’s claims alleging violations under 42 U.S.C. § 1983,
the FNHRA, the FCA, and EMTALA be DISMISSED pursuant to 28 U.S.C. § 1915(e) for
failure to state a claim upon which relief may be granted; and it is further
RECOMMENDED, that if this Report-Recommendation is APPROVED, it shall be
ORDERED, that the Clerk shall issue summonses and forward them, along with copies
of the complaint and a packet containing General Order 25, which sets forth the Civil Case
Management Plan used by the Northern District of New York, to the United States Marshal for
service upon the named defendants; and it shall be further
ORDERED, that defendants or counsel, shall file a response to the complaint as
provided for in Federal Rules of Civil Procedure; and it shall be further
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ORDERED, that all pleadings, motions, and other documents relating to this action must
bear the case number assigned to this action and be filed with the Clerk of the United States
District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St.,
Syracuse, New York 13261-7367. Any paper sent by a party to the Court or the Clerk must
be accompanied by a certificate showing that a true and correct copy of same was served
on all opposing parties or their counsel. Any document received by the Clerk or the Court
which does not include a proper certificate of service will be stricken from the docket. Plaintiff
must comply with any requests by the Clerk’s Office for any documents that are necessary to
maintain this action. All parties must comply with Local Rule 7.1 of the Northern District of
New York in filing motions. Plaintiff is also required to promptly notify the Clerk’s Office
and all parties or their counsel, in writing, of any change in his address; the failure to do so
may result in the dismissal of his action; and it is further
ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order upon
Plaintiff in accordance with the Local Rules, along with copies of the unpublished decisions cited
herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir.
2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to
file written objections to the foregoing report.3 Such objections shall be filed with the Clerk of
the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS
3 If you are proceeding pro se and are served with this Order and Report-Recommendation by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date the Report-Recommendation and Order was mailed to you to serve
and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that
is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
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WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993)
(citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72.
IT IS SO ORDERED.
Dated: April 17, 2026
Syracuse, New York
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Cole v. Smrtic, Not Reported in Fed. Supp. (2024)
2024 WL 4870495
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 4870495
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Matthew H. COLE, Plaintiff,
v.
Honorable Michael W. SMRTIC, et al. Defendants.
No. 1:24-CV-00847 (MAD/CFH)
|
Signed November 21, 2024
Attorneys and Law Firms
MATTHEW H. COLE, 271 Market Street, Amsterdam, New
York 12010, Plaintiff pro se.
REPORT-RECOMMENDATION & ORDER
CHRISTIAN F. HUMMEL, United States Magistrate Judge
I. In Forma Pauperis
*1 Plaintiff pro se Matthew H. Cole (“plaintiff”)
commenced this action (No. 1:24-CV-00623) on May 6,
2024, by filing a complaint. See Dkt. No. 1 (“Compl.”).
On September 26, 2024, plaintiff submitted what the Court
construes to be a supplement to the complaint. 1 See Dkt. No.
7. In lieu of paying this Court's filing fees, he submitted an
application for leave to proceed in forma pauperis (“IFP”).
See Dkt. No. 2. The undersigned has reviewed plaintiff's IFP
application and determines that he financially qualifies to
proceed IFP. 2 Thus, the Court proceeds to its review of the
complaint pursuant to 28 U.S.C. § 1915. Plaintiff has also
submitted for the Court's review a Pro Se Application for
Permission to File Electronically and a Motion to Appoint
Counsel. See Dkt. Nos. 4, 5.
1 The submission includes a letter addressed to
District Judge D'Agostino, titled, “Requirements
for Cases Removed From State Court,” Dkt. No.
7; a receipt from Montgomery County Clerk dated
December 8, 2022; and a “Notice of Claim” with
the caption of Cole v. County of Montgomery,
dated December 7, 2022. See Dkt. No. 7. The
undersigned has reviewed this submission in
connection with the initial review of plaintiff's
complaint. See Sira v. Morton, 380 F. 3d 57, 67 (2d
Cir. 2004).
2 Plaintiff is advised that, although he has been
granted IFP status, he is still required to pay all fees
and costs he may incur in this action, including,
but not limited to, copying fees, transcript fees, and
witness fees.
II. Initial Review
A. Legal Standards
Section 1915 of Title 28 of the United States Code directs
that, when a plaintiff seeks to proceed IFP, “the court shall
dismiss the case at any time if the court determines that ... the
action or appeal (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B). Thus, it is a court's responsibility to
determine that a plaintiff may properly maintain his complaint
before permitting him to proceed with his action.
Where, as here, the plaintiff proceeds pro se, “the court
must construe his submissions liberally and interpret them
to raise the strongest arguments that they suggest.” Kirkland
v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014)
(per curiam) (internal quotation marks omitted); see also
Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). As
the Second Circuit stated,
There are many cases in which we have said that a pro
se litigant is entitled to “special solicitude,” that a pro se
litigant's submissions must be construed “liberally,” and
that such submissions must be read to raise the strongest
arguments that they “suggest[.]” At the same time, our
cases have also indicated that we cannot read into pro se
submissions claims that are not “consistent” with the pro
se litigant's allegations, or arguments that the submissions
themselves do not “suggest,” that we should not “excuse
frivolous or vexatious filings by pro se litigants,” and that
pro se status “does not exempt a party from compliance
with relevant rules of procedural and substantive law[.]”
*2 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
477 (2d Cir. 2006) (citations and footnote omitted); see also
Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92
(2d Cir. 2008).
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Cole v. Smrtic, Not Reported in Fed. Supp. (2024)
2024 WL 4870495
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
“The [Second Circuit]’s ‘special solicitude’ for pro se
pleadings has its limits, because pro se pleadings still must
comply with ... the Federal Rules of Civil Procedure [(‘Fed.
R. Civ. P.’)].” Kastner v. Tri State Eye, No. 19-CV-10668
(CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019)
(quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)).
Pleading guidelines are provided in the Federal Rules of
Civil Procedure. Specifically, Rule 8 requires the pleading to
include:
(1) a short and plain statement of the grounds for the court's
jurisdiction ...;
(2) a short and plain statement of the claim showing that
the pleader is entitled to relief; and
(3) a demand for the relief sought...
FED. R. CIV. P. 8(a). Although “[n]o technical form is
required,” the Federal Rules make clear that each allegation
contained in the pleading “must be simple, concise, and
direct.” Id. at 8(d). “The purpose ... is to give fair notice
of the claim being asserted so as to permit the adverse
party the opportunity to file a responsive answer, prepare an
adequate defense and determine whether the doctrine of res
judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54,
54 (N.D.N.Y. 1999) (internal quotation marks and citations
omitted). Allegations that “are so vague as to fail to give the
defendants adequate notice of the claims against them” are
subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104
(2d Cir. 2009) (summary order).
Further, Fed. R. Civ. P. 10 provides:
[a] party must state its claims or
defenses in numbered paragraphs,
each limited as far as practicable to
a single set of circumstances. A later
pleading may refer by number to
a paragraph in an earlier pleading.
If doing so would promote clarity,
each claim founded on a separate
transaction or occurrence – and each
defense other than a denial – must be
stated in a separate count or defense.
FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing]
an easy mode of identification for referring to a particular
paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 54
(internal quotation marks and citations omitted). A complaint
that fails to comply with the pleading requirements “presents
far too a heavy burden in terms of a defendant's duty to
shape a comprehensive defense and provides no meaningful
basis for the Court to assess the sufficiency of their claims.”
Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As
the Second Circuit has held, “[w]hen a complaint does not
comply with the requirement that it be short and plain, the
court has the power, on its own initiative ... to dismiss the
complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988) (citations omitted). However, “[d]ismissal ... is usually
reserved for those cases in which the complaint is so confused,
ambiguous, vague, or otherwise unintelligible that its true
substance, if any, is well disguised.” Id. (citations omitted).
*3 This Court also has an overarching obligation to
determine that a claim is not legally frivolous before
permitting a pro se plaintiff's complaint to proceed. See, e.g.,
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d
362, 363 (2d Cir. 2000). “Legal frivolity ... occurs where
‘the claim is based on an indisputably meritless legal theory
[such as] when either the claim lacks an arguable basis in
law, or a dispositive defense clearly exists on the face of the
complaint.’ ” Aguilar v. United States, Nos. 99-MC-0304, 99-
MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) 3
(quoting Livingston v. Adirondack Beverage Co., 141 F.3d
434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490
U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal
theory ... or factual contentions lack an arguable basis.”).
3 Any unpublished cases cited within this Report-
Recommendation & Order have been provided to
plaintiff.
B. Complaint
Plaintiff's civil cover sheet indicates that he seeks to bring this
action pursuant to “Title U.S.C. 18 Section 241, Conspiracy
Against Rights & Title U.S.C. 18 Section 242 Deprivation
of rights Under Color of Law.” Dkt. No. 1-1 at 1. The civil
cover sheet further provides that his cause of action involves,
“Violation of Due process, Speedy Trial Rights, Ineffective
Assistance of Counsel. I feel I am being targeted for being
black and gay.” Id.
Plaintiff's form complaint checks the box indicating that
he seeks to bring this case pursuant to 42 U.S.C. § 1983.
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See Compl. at 3. In response to the question in the form
complaint asking in “what federal constitutional or statutory
right(s) do you claim is/are being violated by state or local
officials,” plaintiff responds, “Due Process, 30.30 Speedy
Trial Violation, Ineffective Assistance of counsel.” 4 Id. In
response to a question asking him to explain “how each
defendant acted under color of state or local law,” plaintiff
states “Each judge deliberately denied me due process, and
refused to look into the paperwork to see that i was improperly
denied my speedy trial rights. It was a tean [sic] effort.
The ADA/Special Prosecutor withheld potential exculpatory
material which was usd [sic] against me. All mentioned
actions were done and upheld even after I showed federal law
with supportive case law as a pro se litigant.” Id.
4 Although plaintiff generally references ineffective
assistance of counsel, Compl. at 4, he does not
name any attorney who may have represented
him. Any claims against the prosecutor would
not be considered ineffective assistance of counsel
because Mr. Maxwell, as the prosecutor, was not
plaintiff's attorney.
Plaintiff provides that his “case is still on appeakl [sic] in
Appellate Court Third Department. I feel they are guilty,
or part of what I call a scandal. I went to them from the
very start with a complaint to the grievance committee,
where they denied any wrongdoing. It must be ok to violate
Constitutional rights there. This is from March 2019 to
present” Id.
In response to a question that asks plaintiff to state the facts
underlying his claims, plaintiff states, “Please see attached
Article 78 that is attached. It was dismissed being in the wrong
court, but is on point.” Id. at 4. Plaintiff did not provide the
Court with any such attachment and has not submitted any
Article 78 materials. See Compl., Dkt. No. 7.
In response to the form complaint's question asking about
any injuries suffered as a result of the conduct he complains
of, plaintiff states, “Sever [sic] depression over 20 years,
irreperable [sic] harm, defamation of charcter [sic] by
arguments not legally allowed to give. Loss of income,
inability to gain and keep employment, mental trauma,
instilled disbelief in justice in the legal system, familial
traumam [sic] due to my legal battles.” Id. Indicating the relief
sought, plaintiff states
*4 Petitioner seeks reinstatement
of driving priveldges [sic], and 10
million dollars for damages caused by
conflict of interest, deliberate violation
of Due Process, Speedy Trial rights,
Ineffective assistance of counsel,
malice, Brady Violation, Petitioner
claims deliberate misconduct and
malice in Montgomery County Court,
the Saratoga Disrict Attorney's Office,
and the Supreme Court Appellate
Division Third department. ** This is
subject to change if an attorney agrees
to represent.
Compl. at 5. Although he typed his name, plaintiff does not
sign the complaint where a signature is indicated. See id. at 8.
Plaintiff provides in his supplement that he “removed this
action to district court asserting jurisdiction pursuant to 42
U.S.C. 1983, and § 1441.” Dkt. No. 7. at 1. Plaintiff states
that he removed this case from Montgomery County Supreme
Court. See id. He states that he seeks or sought the removal
because he was told he was “not guarantee counsel” at the
state, but that “[i]n Federal Court, there is that option, pending
qualification, and I am told, if a lawyer agrees to take it, then
I really have something. I am in dire need of counsel.” Id.
Plaintiff states, “[t]he ineffective assistance of counsel and
The County Court are a matter already mentioned in the
appeal.” Dkt. No. 7 at 2. Plaintiff states that “[t]o get my
conviction, I allege judicial and prosecutorial misconduct,
and ineffective assistance of counsel × 4. That is why I am
pro se. I had to protect myself when appointed counsel did
not. It also went through a couple judges which is why they
are mentioned in the preliminary complaint/paperwork, and
why I mention bias.” Id. Plaintiff states he can “prove each
thing I saw not just with my words, but with transcripts 5 from
the County Court, and the Adult Drug Court.” Id. Plaintiff
refers to being drug free for four and a half years and having
academic success in college. Id. at 3. He states that he wishes
this Court to hear his case because he believes he will not
“see bias” in federal court “like I saw in others.” Id. Plaintiff
states that he “also put in a Notice of Removal in the Federal
Court for those criminal charges that led to the Complaint. I
do not trust the assigned appellate attorney. That case too has
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Constitutional violations. That case number is 1:24-CR-301
(AMN).” Id.
5 Plaintiff did not provide any transcripts.
C. Discussion 6
6 As a courtesy, the Court has provided plaintiff with
copies of any unpublished cases cited within this
Report-Recommendation & Order.
1. Rule 8
As a threshold issue, plaintiff's complaint fails to meet the
requirements of Rule 8. See FED. R. CIV. P. 8(a)(2). He
does not provide a short and plain statement of the claim
demonstrating why he is entitled to relief. Although he
makes general references to both an Article 78 proceeding
and a criminal proceeding and unexplained references to
“Due Process, 30.30 Speedy Trial Violation, Ineffective of
Counsel,” he does not provide factual support or context.
Thus, his complaint does not provide “fair notice” to
defendants of the claims against them. See FED. R. CIV. P.
8(a)(2).
2. Heck v. Humphrey
However, there are several substantive concerns that further
lead the undersigned to recommend dismissal. First, in
referencing to “Due Process, 30.30 Speedy Trial Violation,
Ineffective of Counsel” and explicitly referencing a criminal
conviction, it is clear that plaintiff is attempting to seek
some kind of review of a criminal proceeding or conviction.
See Compl. at 3. Plaintiff also accuses all named judges
of denying him due process and contends that an unnamed
“ADA/Special Prosecutor withheld potential exculpatory
material which was usd [sic] against me.” Compl. at 4.
Plaintiff also references a conviction. See Dkt. No. 7 at 4.
Such claims would be barred by Heck v. Humphrey.
*5 As this Court, citing the District of Connecticut, has set
forth:
In Heck, the Supreme Court held that in order for a
plaintiff “to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction
or sentence invalid, a § 1983 plaintiff must prove that
the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by
a state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a writ
of habeas corpus.” Id. at 486-87. The court further held
that “[a] claim for damages bearing that relationship to
a conviction or sentence that has not been so invalidated
is not cognizable under § 1983.” Id. at 487 (emphasis in
original).
[ ]
Thus, under Heck and its progeny, if a conviction has not
been invalidated previously, a Ҥ 1983 action is barred ...
no matter the target of the prisoner's suit ... if success in
that action would necessarily demonstrate the invalidity
of confinement or its duration.” Wilkinson v. Dotson, 544
U.S. 74, 81-82 (2005) (emphasis in original).
Ali v. Shattuck, No. 8:24-CV-0128 (DNH/CFH), 2024
WL 2747619, at *3 (N.D.N.Y. May 29, 2024), report-
recommendation adopted sub nom. Ali v. Dow, No. 8:24-
CV-128, 2024 WL 3460745 (N.D.N.Y. July 18, 2024)
(quoting Zografidis v. Richards, No. 3:22-CV-00631 (AVC),
2022 WL 21756775, at *7 (D. Conn. July 6, 2022), report and
recommendation adopted (Oct. 7, 2022), aff'd, No. 22-3197,
2023 WL 7538211 (2d Cir. Nov. 14, 2023)).
Plaintiff has failed to demonstrate that any criminal charge(s),
conviction, or sentence has been “reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into
question by a federal court's issuance of a writ of habeas
corpus.” Zografidis, 2022 WL 21756775, at *7. Although
plaintiff's complaint wants for detail, the undersigned can
clearly determine that plaintiff seeks review of his criminal
proceedings, conviction, and/or sentence. The claims plaintiff
seeks to pursue relate to allegations that he was denied
due process, denied speedy trial rights, and experienced
ineffective assistance of counsel. Accordingly, plaintiff's
claims are barred by Heck unless and until he can demonstrate
favorable termination of his criminal conviction. 7
7 The undersigned recognizes that claims that are
determined to be barred by Heck are dismissed
without prejudice. However, the undersigned has
recommended dismissal with prejudice because
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plaintiff has only named defendants who are
immune from relief. Accordingly, the undersigned
is recommending dismissal of the claims based on
these immunities, rather than a Heck dismissal. The
undersigned has included the Heck review for sake
of completeness.
3. Immunities
Plaintiff names as defendants several defendants who are
immune from suit. Insofar as plaintiff names Hon. Michael
W. Smrtic, Interim Montgomery County Judge and Tatiana N.
Coffinger, “County/Family/Surrogate's Court Judge” 8 such
claims would be barred by judicial immunity.
8 Although plaintiff provides no facts regarding
any family court proceedings, that he named a
family court judge and makes general reference
to that he seeks review over actions taken by
a family court judge. Even if plaintiff were to
amend his complaint to provide facts about any
possible family court proceedings and details
about any alleged violations of his rights that he
believes he faced in that Court, if plaintiff seeks
this Court's review of an order of the family
court, such review would be barred by Rooker-
Feldman, and if plaintiff seeks this Court's review
or intervention of a currently pending/ongoing
Family Court proceeding, such review would be
barred by Younger. See Porter v. Nasci, No. 5:24-
CV-0033 (GTS/TWD), 2024 WL 1142144, at
*4 (N.D.N.Y. Mar. 15, 2024) (citations omitted),
report and recommendation adopted, 2024 WL
3158645 (N.D.N.Y. June 25, 2024) (“Under the
Rooker-Feldman doctrine, a federal district court
lacks authority to review a final state court order
or judgment where a litigant seeks relief that
invites the federal district court to reject or overturn
such a final state court order or judgment.”); see
also Diamond “D” Constr. Corp. v. McGowan,
282 F.3d 191, 198 (2d Cir. 2002) (“[F]ederal
courts [must] abstain from taking jurisdiction over
federal constitutional claims that involve or call
into question ongoing state proceedings.”).
*6 “With minor exceptions, judges are entitled to absolute
immunity for actions relating to the exercise of their judicial
functions.” Zavalidroga v. Girouard, No. 6:17-CV-682 (BKS/
ATB), 2017 WL 8777370, at *8 (N.D.N.Y. July 7, 2017)
(citing Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per
curiam)). “Judicial immunity has been created for the public
interest in having judges who are ‘at liberty to exercise
their functions with independence and without fear of
consequences.’ ” Id. (quoting Huminski v. Corsones, 396
F.3d 53, 74 (2d Cir. 2004)). “Judicial immunity applies even
when the judge is accused of acting maliciously or corruptly.”
Id. (citation omitted); see Positano v. New York, No. 12-
CV-2288 (ADS/AKT), 2013 WL 880329, at *4 (E.D.N.Y.
Mar. 7, 2013) (explaining that the plaintiff may not bring
action against a judge for actions taken in his judicial capacity,
even when the actions violated the ADA).
“Judicial immunity is immunity from suit, not just immunity
from the assessment of damages.” Zavalidroga, 2017 WL
8777370, at *8 (citing Mitchell v. Forsyth, 472 U.S. 511,
526 (1985)). “The only two circumstances in which judicial
immunity does not apply is when he or she takes action
‘outside’ his or her judicial capacity and when the judge takes
action that, although judicial in nature, is taken ‘in absence
of jurisdiction.’ ” Id. (quoting Mireles, 502 U.S. at 11-12).
“In determining whether or not a judge acted in the clear
absence of all jurisdiction, the judge's jurisdiction is ‘to be
construed broadly, and the asserted immunity will only be
overcome when the judge clearly lacks jurisdiction over the
subject matter.’ ” Pacherille v. Burns, 30 F. Supp. 3d 159,
163 (N.D.N.Y. 2014) (quoting Ceparano v. Southampton Just.
Ct., 404 F. App'x 537, 539 (2d Cir. 2011) (summary order)).
“Whether a judge acted in a judicial capacity depends on
the nature of the act [complained of] itself, i.e., whether it
is a function normally performed by a judge, and [on] the
expectations of the parties, i.e., whether they dealt with the
judge in his judicial capacity.” Ceparano, 404 F. App'x at 539
(internal quotation marks and citation omitted). “Further, if
the judge is performing in his judicial capacity,” he “ ‘will not
be deprived of immunity because the action he took was in
error, was done maliciously, or was in excess of his authority;
rather, he will be subject to liability only when he has acted
in the clear absence of all jurisdiction.’ ” Ceparano, 404 F.
App'x at 539 (quoting Stump v. Sparkman, 435 U.S. 349, 362
(1978)). “Judges are not, however, absolutely ‘immune from
liability for nonjudicial actions, i.e., actions not taken in the
judge's judicial capacity.’ ” Bliven v. Hunt, 579 F.3d 204, 209
(2d Cir. 2009) (quoting Mireles, 502 U.S. at 11).
Thus, as plaintiff names the judicial defendants in relation to
actions or omissions that they took in their roles as judges,
their actions are protected by absolute judicial immunity.
To the extent plaintiff names Hon. Felix Catena, “Retired
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Administrative Law Judge,” Judge Catena is also protected
by absolute judicial immunity as a judge's retirement, “does
not impact [his or] her immunity for acts taken in [his or]
her official capacity before her retirement.” McCray v. Lewis,
No. 16-CV-3855 (WFK/VMS), 2016 WL 4579081, at *2
(E.D.N.Y. Aug. 31, 2016). To the extent plaintiff may seek to
sue the judges their official capacities, the suit is barred by the
Eleventh Amendment. See Pacherille v. Burns, 30 F. Supp.
3d 159, 163 n.5 (N.D.N.Y. 2014) (“The Eleventh Amendment
shields judges from suit to the extent that they are sued in their
official capacities.”).
*7 In addition, plaintiff also references, exclusively in his
“relief” section of the form complaint, “the Supreme Court
Appellate Division, Third Department” when stating that he
experienced “deliberate misconduct and malice.” Compl. at
7. He does not name this Court as a defendant anywhere in
the complaint. However, even if plaintiff were to have named
the Appellate Division, Third Department as a defendant,
such defendant would also need to be dismissed based on
Eleventh Amendment immunity as the Appellate Division “is
merely an agency or arm of New York State.” Benyi v. New
York, No. 3:20-CV-1463 (DNH/ML), 2021 WL 1406649, at
*5 (N.D.N.Y. Mar. 23, 2021), report and recommendation
adopted, No. 3:20-CV-1463, 2021 WL 1404555 (N.D.N.Y.
Apr. 13, 2021) (citation omitted). Accordingly, to the extent
a liberal reading of the complaint may suggest that plaintiff
seeks to name the Appellate Division as a defendant, such
claims are barred by Eleventh Amendment immunity. See
Compl.
Finally, insofar as plaintiff seeks to sue Prosecutor Samuel V.
Maxwell, Esq., Assistant District Attorney, in addition to the
Heck issues noted above, he would be protected by absolute
prosecutorial immunity. As this Court has recently reiterated,
Prosecutors enjoy “absolute immunity from § 1983 liability
for those prosecutorial activities ‘intimately associated
with the judicial phase of the criminal process.’ ” Barr v.
Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (citing Imbler
v. Pachtman, 424 U.S. 409, 430 (1976)). This immunity
encompasses “virtually all acts, regardless of motivation,
associated with [the prosecutor's] function as an advocate.”
Hill v. City of New York, 45 F.3d 653, 661 (2d Cir.
1995) (internal quotations and citation omitted). Absolute
immunity applies when a prosecutor's conduct, acting as an
advocate during the judicial phase of the criminal process,
“involves the exercise of discretion.” Flagler v. Trainor,
663 F.3d 543, 547 (2d Cir. 2011) (citing Kalina v. Fletcher,
522 U.S. 118, 127 (1997)).
Accordingly, absolute immunity extends to functions such
as “deciding whether to bring charges and presenting a case
to a grand jury or a court, along with the tasks generally
considered adjunct to those functions, such as witness
preparation, witness selection, and issuing subpoenas.”
Simon v. City of New York, 727 F.3d 167, 171 (2d
Cir. 2013) (citing Imbler, 424 U.S. at 431 n.33); see
also Flagler, 663 F.3d at 547 (explaining, “the Supreme
Court has found prosecutors absolutely immune from
suit for alleged misconduct during a probable cause
hearing, in initiating a prosecution, and in presenting
the State's case ... [but] withheld absolute immunity for
conduct unrelated to advocacy, such as giving legal advice,
holding a press conference, or acting as a complaining
witness.”). “[O]nce a court determines that challenged
conduct involves a function covered by absolute immunity,
the actor is shielded from liability for damages regardless
of the wrongfulness of his motive or the degree of injury
caused ....” Bernard v. Cnty. of Suffolk, 356 F.3d 495, 503
(2d Cir. 2004) (citing Cleavinger v. Saxner, 474 U.S. 193,
199-200 (1985)).
Williams v. Atkins, No. 5:24-CV-0573 (DNH/TWD), 2024
WL 3649849, at *5 (N.D.N.Y. June 11, 2024), report
and recommendation adopted, No. 5:24-CV-573, 2024 WL
3548760 (N.D.N.Y. July 26, 2024).
Plaintiff appears to suggest that Mr. Maxwell “withheld
potentially exculpatory material” that was used against
him. Compl. at 4. Beyond the Heck barriers already
discussed, even if plaintiff could amend to provide greater
detail, absolute immunity would extent to even this alleged
misconduct as such allegations clearly fall within the scope of
prosecutorial immunity. Accordingly, it is recommended that
any claims against ADA Samuel V. Maxwell be dismissed
for absolute prosecutorial immunity. “Furthermore, because
the District Attorney's prosecutorial immunity is substantive
and not something that can be corrected by a better pleading,
I recommend that the dismissal be with prejudice.” Phillips
v. New York, No. 5:13-CV-927, 2013 WL 5703629, at *5
(N.D.N.Y. Oct. 17, 2013) (quoting Cuoco v. Moritsugu, 222
F.3d 99, 223 (2d Cir. 2000)). 9
9 Plaintiff appears to characterize his submissions as
a purported removal to federal court or suggests
that he seeks to remove his case from Montgomery
County Court to this Court. See Dkt. No. 7
(citing 28 U.S.C. § 1441). However, in addition
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to the infirmities mentioned above, plaintiff has
not demonstrated that any proceeding related to
this complaint has been properly removed to, or
is subject to removal to, this Court. See, e.g.,
28 U.S.C. § 1446. Indeed, plaintiff's submissions
appear to indicate that plaintiff is the plaintiff in the
County Court action. See id. § 1446(a).
III. Conclusion
*8 It is ORDERED, that plaintiff's in forma pauperis
application (dkt. no. 2) be GRANTED; and it is
RECOMMENDED, that plaintiff's section 1983 claims
against Honorable Michael W. Smrtic; Tatiana N. Coffinger,
County/Family/Surrogate's Court Judge; and Felix Catena,
Retired Administrative Law Judge (Dkt. Nos. 1, 7) be
DISMISSED WITH PREJUDICE as follows: (1) claims
brought against them in their personal/individual capacities
for judicial immunity, and (2) claims brought against them in
their official capacities for Eleventh Amendment immunity;
and it is further
RECOMMENDED, that plaintiff's section 1983 claims
against Assistant District Attorney Samuel V. Maxwell (Dkt.
Nos. 1, 7) be DISMISSED WITH PREJUDICE due to
absolute prosecutorial immunity; and it is further
RECOMMENDED, that, to the extent a liberal reading
of the complaint may suggest that plaintiff seeks to name
the Appellate Division, Third Department, as a defendant
(Dkt. Nos. 1, 7), such claims be DISMISSED WITH
PREJUDICE as barred by Eleventh Amendment immunity,
and it is
RECOMMENDED, that plaintiff's pro se motion for
permission to file electronically (dkt. no. 4) and motion to
appoint counsel 10 (dkt. no. 5) be DISMISSED AS MOOT
based on the above recommendations, and it is
10 The undersigned also notes that plaintiff did
not contend that he made any efforts to obtain
counsel on his own, show proof of any attorneys
he contacted. See Terminate Control Corp v.
Horowitz, 28 F.3d 1335 (2d Cir. 1994). See Dkt.
No. 5.
ORDERED, that the Clerk serve this Report-
Recommendation & Order on plaintiff in accordance with the
Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), parties have
FOURTEEN (14) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y
of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see
also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 72. 11
11 If you are proceeding pro se and are served with
this Report-Recommendation and Order by mail,
three (3) additional days will be added to the
fourteen (14) day period, meaning that you have
seventeen (17) days from the date the Report-
Recommendation and Order was mailed to you to
serve and file objections. FED. R. CIV. P. 6(d).
If the last day of that prescribed period falls on
a Saturday, Sunday, or legal holiday, then the
deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Id.
§ 6(a)(1)(c).
All Citations
Not Reported in Fed. Supp., 2024 WL 4870495
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2025 WL 247901
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Matthew H. COLE, Plaintiff,
v.
Honorable Michael W. SMRTIC, Interim Montgomery
County Judge; Tatiana N. Coffinger, County/Family/
Surrogate's Court Judge; Honorable Felix Catena,
Retired Administrative Law Judge; and Samuel V.
Maxwell, Esq., Assistant District Attorney, Defendants.
1:24-CV-847 (MAD/PJE)
|
Signed January 21, 2025
Attorneys and Law Firms
MATTHEW H. COLE, 271 Market Street, Amsterdam, New
York 12010, Plaintiff pro se.
ORDER
Mae A. D'Agostino, United States District Judge:
*1 Plaintiff commenced this action on May 6, 2024,
asserting that Defendants violated his due process and speedy
trial rights, and that he received ineffective assistance of
counsel in an underlying state criminal action. See Dkt. No. 1.
In a Report-Recommendation and Order dated November 21,
2024, Magistrate Judge Hummel granted Plaintiff's request
to proceed in forma pauperis and conducted an initial
review of the complaint. See Dkt. No. 8. In the Report-
Recommendation and Order, Magistrate Judge Hummel
concluded that, in addition to the complaint being subject
to dismissal for failure to comply with Rule 8 of the
Federal Rules of Civil Procedure, Plaintiff's due process,
speedy trial, and ineffective assistance of counsel claims
are barred by Heck v. Humphrey, 512 U.S. 477 (1994),
because Plaintiff's underlying state court conviction has
not been reversed on direct appeal or otherwise expunged.
See id. at 8-10. Moreover, the Report-Recommendation
and Order recommended dismissal of the claims against
Defendants Smrtic, Coffinger, and Catena since they are
barred by absolute judicial immunity. See id. at 10-12.
To the extent Plaintiff is attempting to assert a claim
against the Appellate Division, Third Department, Magistrate
Judge Hummel found that the claim is barred by Eleventh
Amendment immunity because the Appellate Division “
‘is merely an agency or arm of New York State.” Id. at
12-13 (quotation omitted). Finally, Magistrate Judge Hummel
recommended that the claims against Defendant Maxwell be
dismissed because he is protected by prosecutorial immunity.
See id. at 13-14. Plaintiff has not objected to the Report-
Recommendation and Order.
When a party files specific objections to a magistrate judge's
report-recommendation, the district court “make[s] a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C). However, when a party
files “[g]eneral or conclusory objections, or objections which
merely recite the same arguments [that he] presented to the
magistrate judge,” the court reviews those recommendations
for clear error only. O'Diah v. Mawhir, No. 9:08-CV-322,
2011 WL 933846, *2 (N.D.N.Y. Mar. 16, 2011) (citations
and footnote omitted). After the appropriate review, “the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C).
In the present matter, the Court finds that Magistrate Judge
Hummel correctly determined that Plaintiff's complaint must
be dismissed. Plaintiff's complaint makes clear that his claims
stem from alleged violations of his rights that occurred during
an underlying state criminal case. See Dkt. No. 1 at 3-4;
Dkt. No. 7 at 4. Since Plaintiff's criminal conviction has not
been reversed, expunged by executive order, or called into
question by a federal court's issuance of a writ of habeas
corpus, Plaintiff's claims brought pursuant to Section 1983 are
barred by Heck v. Humphrey, 512 U.S. 477 (1994). See Strong
v. Watson, No. 1:22-cv-552, 2023 WL 8439445, *14-15
(W.D.N.Y. Sept. 26, 2023) (dismissing the plaintiff's claims
of malicious prosecution, conspiracy, speedy trial violations,
denial of due process, and denial of equal protection under
Heck because the claims “all seek to impugn the validity of
his underlying state court criminal charges”).
*2 Magistrate Judge Hummel also correctly determined
that, in the alternative, the claims against the named
Defendants are subject to dismissal based on absolute
judicial and prosecutorial immunity. The allegations against
Defendants Smrtic, Coffinger, and Catena make clear that
these individuals were acting in their judicial capacities
and that their actions were not taken in the absence of
jurisdiction. Accordingly, they are entitled to absolute judicial
immunity. See Ceparano v. Southampton Just. Ct., 404 Fed.
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Cole v. Smrtic, Not Reported in Fed. Supp. (2025)
2025 WL 247901
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
Appx. 537, 539 (2d Cir. 2011). As to Defendant Maxwell,
Plaintiff has alleged that he withheld exculpatory evidence
in the underlying criminal matter. Since this conduct clearly
involves “prosecutorial activities ‘intimately associated with
the judicial phase of the criminal process,’ ” Defendant
Maxwell is entitled to absolute prosecutorial immunity. See
Barr v. Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (quoting
Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Additionally,
to the extent Plaintiff has attempted to assert claims against
the Appellate Division, Third Department, the claims must be
dismissed because the Third Department is an arm of New
York State and is entitled to Eleventh Amendment immunity.
See Benyi v. New York, No. 3:20-cv-1463, 2021 WL 1406649,
*5 (N.D.N.Y. Mar. 23, 2021) (citation omitted).
Finally, the Court agrees with Magistrate Judge Hummel that,
because it is clear that the issues with Plaintiff's complaint
are substantive and not something that can be corrected by
better pleading, Plaintiff will not be afforded an opportunity
to amend his complaint. See Phillips v. New York, No. 5:13-
cv-927, 2013 WL 5703629, *5 (N.D.N.Y. Oct. 17, 2013)
(quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000)).
Accordingly, the Court hereby
ORDERS that Magistrate Judge Hummel's November 21,
2024, Report-Recommendation and Order (Dkt. No. 8) is
ADOPTED in its entirety for the reasons set forth herein;
and the Court further
ORDERS that Plaintiff's complaint (Dkt. No. 1) is
DISMISSED without leave to amend; and the Court further
ORDERS that Plaintiff's motion for permission to file
electronically (Dkt. No. 4) and motion to appoint counsel
(Dkt. No. 5) are DENIED as moot; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in
Defendants’ favor and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of
this Order on Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2025 WL 247901
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Bennett v. Bailey, Not Reported in Fed. Supp. (2020)
2020 WL 5775940
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 5775940
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Andrew S. BENNETT and
Kristina M. McDonald, Plaintiffs,
v.
Don BAILEY and Route 11 Motorsports, Defendants.
5:20-CV-903 (GTS/ATB)
|
Signed 08/17/2020
Attorneys and Law Firms
ANDREW S. BENNETT and KRISTINA M. McDONALD,
Plaintiffs Pro Se.
ORDER and REPORT-RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge
*1 The Clerk has sent to the court for review a complaint
brought pursuant to 42 U.S.C. § 1983, filed by plaintiffs
Andrew S. Bennett and Kristina M. McDonald. (Dkt. No.
1). Plaintiffs have also applied to proceed in forma pauperis
(“IFP”). 1 (Dkt. No. 2).
1 Both plaintiffs have signed the complaint and
the IFP application and are each representing
themselves. Because this court is recommending
dismissal for lack of jurisdiction, the court will not
require plaintiffs to file separate IFP applications.
I. IFP Application
Plaintiffs declare in their IFP application that they are unable
to pay the filing fee. (Dkt. No. 2). After reviewing his
application, this court finds that plaintiffs are financially
eligible for IFP status.
However, in addition to determining whether plaintiffs meet
the financial criteria to proceed IFP, the court must also
consider the sufficiency of the allegations set forth in the
complaint in light of 28 U.S.C. § 1915, which provides that
the court shall dismiss the case at any time if the court
determines that the action is (i) frivolous or malicious; (ii)
fails to state a claim on which relief may be granted; or (iii)
seeks monetary relief against a defendant who is immune
from such relief. 28 U.S.C. § 1915 (e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must
consider whether the complaint lacks an arguable basis in
law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Dismissal of frivolous actions is appropriate to prevent abuses
of court process as well as to discourage the waste of judicial
resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505
F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to
show liberality toward pro se litigants, and must use extreme
caution in ordering sua sponte dismissal of a pro se complaint
before the adverse party has been served and has had an
opportunity to respond, the court still has a responsibility
to determine that a claim is not frivolous before permitting
a plaintiff to proceed. Fitzgerald v. First East Seventh St.
Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that
a district court may dismiss a frivolous complaint sua sponte
even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint
must contain sufficient factual matter, accepted as true, to
state a claim that is “plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Bell Atl.
Corp., 550 U.S. at 555).
II. Complaint
Plaintiffs allege that on March 17, 2020, they purchased a
car from the defendant Don Bailey and his company Route
11 Motorsports. (Complaint (“Compl.”) ¶ 4 at p.2 (Facts)).
Plaintiffs claim that defendant Bailey gave them a “90 Day
Warranty” which he is not honoring. (Id.) Two days after
they purchased the vehicle, the motor began “knocking,” and
plaintiffs contacted Don Bailey, who has failed to rectify the
situation. (See Compl. generally ¶ 4 at pp.3-6). Plaintiffs seek
a full refund of the purchase price of the vehicle and damages
for pain and suffering for a total of $10,500. (Compl. ¶¶ 5-6).
III. Subject Matter Jurisdiction
A. Legal Standards
*2 Federal courts are courts of limited jurisdiction, have
only the power that is authorized by Article III of the
Constitution, and may only preside over cases that fall
within the subject matters delineated by Congress. Bender v.
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Williamsport Area School Dist., 475 U.S. 534, 541 (1986)
(citation omitted). The court must determine whether it has
subject matter jurisdiction, and must dismiss a case at any
stage of the proceedings if it determines that jurisdiction is
lacking. Cave. v. East Meadow Union Free School Dist., 514
F.3d 240, 250 (2d Cir. 2008).
In addition, federal courts have an “independent obligation”
to consider the presence or absence of subject matter
jurisdiction sua sponte. Leopard Marine & Trading, Ltd. v.
Easy Street, Ltd., 896 F.3d 174, 181 (2d Cir. 2018) (quoting In
re Quigley Co., Inc., 676 F.3d 45, 50 (2d Cir. 2012). Subject
matter jurisdiction can never be waived or forfeited. ACCD
Global Agriculture, Inc. v. Perry, No. 12 Civ. 6286, 2013 WL
840706, at *1 (S.D.N.Y. March 1, 2013) (quoting Dumann
Realty, LLC v. Faust, No. 09 Civ. 7651, 2013 WL 30672, at *1
(S.D.N.Y. Jan. 3, 2013) (citing Gonzalez v. Thaler, 565 U.S.
134, 141 (2012); Henderson ex rel. Henderson v. Shinseki,
562 U.S. 434-35 (2011)).
Federal question jurisdiction pursuant to 28 U.S.C. § 1331
provides a basis for jurisdiction when the plaintiff brings
a civil action that arises “under the Constitution, laws, or
treaties of the United States.” 28 U.S. C. § 1331. Diversity
jurisdiction is present when an action is between citizens of
different states, and when the amount in controversy is in
excess of $75,000.00. 28 U.S.C. § 1332(a)(1).
B. Application
1. Section 1983
a. Legal Standards
In order to bring a civil rights action under 42 U.S.C. §
1983, the plaintiff must establish that a defendant, who acts
under color of state law, has caused the deprivation of a right
protected by the federal constitution or laws. 42 U.S.C. §
1983. A person acts under color of state law when he or she
acts in his or her official capacity, “clothed with the authority
of state law,” or acts under “pretense” of law by purporting
to act with official power. Pleasure Island, Inc. v. City of
New York, No. 12 Civ. 4699, 2013 WL 2311837, at *5-6
(E.D.N.Y. May 24, 2013) (quoting West v. Atkins, 487 U.S.
42, 49 (1988)).
The requirement that the defendant acted under “color of
state law” is jurisdictional. Lucas v. Riggi, No. 07-CV-6200,
2008 WL 4758706, at *2 (W.D.N.Y. Oct. 29, 2008) (citing
Polk County v. Dodson, 454 U.S. 312, 315 (1981)). Private
conduct is simply beyond the reach of section 1983 “ ‘no
matter how discriminatory or wrongful” that conduct may
be.” Id. (quoting American Mfrs. Mut. Ins. Co. v. Sullivan, 526
U.S. 40, 49-50 (1999)). A private party may act under color
of state law if he or she engages in conduct that constitutes
willful participation in joint activity with the state. Sybalski
v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257
(2d Cir. 2008) (per curiam). The nexus to the state must be so
close as to be fairly treated as that of the state itself. Tancredi v.
Metro Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003) (citations
omitted).
b. Application
The defendants in this action are a private individual and
what appears to be his car dealership. There is no indication
that either of the defendants acts under color of state law.
Therefore there is no jurisdiction under section 1983 for the
plaintiffs’ case. The court realizes that the plaintiffs are pro
se and will attempt to determine whether there is any other
jurisdictional basis for plaintiffs to bring an action in this court
pursuant to federal question or diversity jurisdiction. 2
2 A pro se plaintiff's pleadings are interpreted to raise
the strongest arguments that they suggest. Burgos
v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
2. Magnuson-Moss Warranty—Federal Trade
Commission Act (“MMWA”), 15 U.S.C. § 2301
a. Legal Standards
*3 The MMWA, is also known as the federal “lemon law.”
Pyskaty v. Wide World of Cars, LLC, 856 F.3d 216, 222 (2d
Cir. 2017). The MMWA “is a remedial statute designed ‘to
improve the adequacy of information available to consumers,
prevent deception, and improve competition in the marketing
of consumer products.’ ” Id. (quoting Motor Vehicle Mfrs.
Ass'n of U.S., Inc. v. Abrams, 899 F.2d 1315, 1317 (2d
Cir. 1990)) (quoting 15 U.S.C. § 2302(a)). The MMWA
allows “a consumer who is damaged by the failure of a
supplier, warrantor, or service contractor to comply with ... a
written warranty [or] implied warranty ... [to] bring suit for
damages and other legal and equitable relief.’ ” Id. (quoting
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15 U.S.C. § 2310(d)(1)). However, the MMWA provides for
federal jurisdiction under certain circumstances. Id. MMWA
claims may be brought in federal court only if the amount in
controversy meets or exceeds $50,000 (exclusive of interests
and costs), computed on the basis of all claims in the action.
Id. (citing § 2310(d)(3)(B)).
b. Application
Plaintiffs in this action allege that the value of the car was
$7,000.00 and their “pain and suffering” was worth another
$3,500.00 for a total of $10,500.00 in damages. (Compl.
¶¶ 5-6). Thus, even if plaintiffs could make a claim under
the MMWA for the failure of defendants to abide by their
warranty, and even if they had cited the appropriate statute,
plaintiffs cannot meet the jurisdictional amount for bringing
an MMWA claim in federal court.
3. Contract Claims
a. Legal Standards
Contract actions are generally state law claims, “governed by
state law standards and analyzed using the familiar elements
applied in a New York breach of contract action.” Liana
Carrier Ltd. v. Pure Biofuels Corporation, 672 F. App'x 85,
92 (2d Cir. 2016). Contractual obligations, are inherently
creatures of state law. Eugene Iovine, Inc. v. City of New York,
No. 98 Civ. 2767, 1999 WL 4899, at *2 (S.D.N.Y. Jan. 5,
1999) (citing Gully v. First National Bank in Meridian, 299
U.S. 109, 115 (1939)). “[A] complaint alleging a violation of a
state cause of action, when Congress has determined that there
should be no private, federal cause of action for the violation,
does not state a claim ‘arising under the Constitution, laws,
or treaties of the United States.’ ” Id. (quoting Merrell
Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 817
(1986)).
b. Application
Plaintiffs in this case essentially argue that defendant Bailey
did not honor his agreement to fix the plaintiffs’ car and now
does not return their calls or texts. (Compl. ¶ 4 at pp.5-6).
As stated above, plaintiffs do not meet the jurisdictional
minimum for an MMWA claim. To the extent that plaintiffs
are trying to state a contract claim or a simple warranty claim,
there is no jurisdiction in federal court for this action, given
the facts of plaintiffs’ case. While federal courts decide state
law claims, those claims are generally either supplemental to a
federal claim 3 or brought under diversity jurisdiction. There
are no viable federal claims in this action. Thus, supplemental
jurisdiction does not apply. Plaintiffs and defendants are
citizens of the same state, and the amount in controversy is
less than the jurisdictional amount of $75,000.00. Thus, there
is no diversity jurisdiction. Because there is no jurisdiction to
decide plaintiffs’ claims, I must recommend dismissal.
3 28 U.S.C. § 1367(a) provides that
in any civil action of which the district courts
have original jurisdiction, the district courts shall
have supplemental jurisdiction over all other
claims that are so related to claims in the action
within such original jurisdiction that they form
part of the same case or controversy under
Article III of the United States Constitution.
Such supplemental jurisdiction shall include
claims that involve the joinder or intervention of
additional parties.
IV. Opportunity to Amend
A. Legal Standards
*4 Generally, when the court dismisses a pro se complaint
sua sponte, the court should afford the plaintiff the
opportunity to amend at least once, however, leave to re-plead
may be denied where any amendment would be futile. Hill
v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Ruffolo
v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).
Futility is present when the problem with plaintiffs’ causes of
action is substantive such that better pleading will not cure it.
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation
omitted).
B. Application
There is no subject matter jurisdiction for plaintiffs to bring
this action in federal court. It does not appear that any
amendment or additional pleading will cure the defects in
jurisdiction. Because there is no subject matter jurisdiction,
the court will recommend dismissing the action without
prejudice to plaintiffs bringing their claims in the appropriate
state court. However, such dismissal should be without the
opportunity to amend since plaintiffs will not be able to cure
the deficiency in their complaint with better pleading.
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WHEREFORE, based on the findings above, it is
ORDERED, that plaintiffs’ application to proceed IFP
(Dkt. No. 2) is GRANTED ONLY TO THE EXTENT
NECESSARY TO FILE THIS ACTION, and it is
RECOMMENDED, that the plaintiffs’ complaint be
DISMISSED WITHOUT PREJUDICE FOR LACK OF
SUBJECT MATTER JURISDICTION, BUT WITHOUT
THE OPPORTUNITY TO AMEND, and it is.
ORDERED, that the Clerk serve a copy of this Order and
Report-Recommendation on plaintiffs by regular mail.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have fourteen (14) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993)(citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
All Citations
Not Reported in Fed. Supp., 2020 WL 5775940
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Bennett v. Bailey, Not Reported in Fed. Supp. (2020)
2020 WL 5775231
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 5775231
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Andrew S. BENNETT; and
Kristina M. McDonald, Plaintiffs,
v.
Don BAILEY; and Route 11 Motorsports, Defendants.
5:20-CV-0903 (GTS/ATB)
|
Signed 09/28/2020
Attorneys and Law Firms
ANDREW S. BENNETT and KRISTINA M. McDONALD,
Plaintiffs, Pro Se, 1137 Roberts Hollow Road, Lowman, New
York 14861.
DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this pro se habeas breach-
of-contract action filed by Andrew S. Bennett and Kristina
M. McDonald (“Plaintiffs”) against Don Bailey and Route 11
Motorsports (“Defendants”) pursuant to 42 U.S.C. § 1983, is
United States Magistrate Judge Andrew T. Baxter's Report-
Recommendation recommending that Plaintiffs’ Complaint
be dismissed without prejudice for lack of subject-matter
jurisdiction pursuant to 28 U.S.C. § 1915 and that such
dismissal should be without prior leave to amend. (Dkt.
No. 3.) Plaintiffs have not filed an objection to the Report-
Recommendation, and the time in which to do so has expired.
(See generally Docket Sheet.)
After carefully reviewing the relevant papers herein,
including Magistrate Judge Baxter's thorough Report-
Recommendation, the Court can find no clear-error in
the Report-Recommendation. 1 Magistrate Judge Baxter
employed the proper standards, accurately recited the facts,
and reasonably applied the law to those facts. As a result,
the Report-Recommendation is accepted and adopted in its
entirety for the reasons set forth therein, and Plaintiffs’
Complaint is dismissed without prejudice for lack of subject-
matter jurisdiction.
1 When no objection is made to a report-
recommendation, the Court subjects that report-
recommendation to only a clear-error review. Fed.
R. Civ. P. 72(b), Advisory Committee Notes: 1983
Addition. When performing such a “clear error”
review, “the court need only satisfy itself that there
is no clear error on the face of the record in order to
accept the recommendation.” Id.; see also Batista
v. Walker, 94-CV-2826, 1995 WL 453299, at *1
(S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am
permitted to adopt those sections of [a magistrate
judge's] report to which no specific objection is
made, so long as those sections are not facially
erroneous.”) (internal quotation marks omitted).
ACCORDINGLY, it is
ORDERED that Magistrate Judge Baxter's Report-
Recommendation (Dkt. No. 3) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that Plaintiffs’ Complaint (Dkt. No. 1) is
DISMISSED without prejudice for lack of subject-matter
jurisdiction.
All Citations
Not Reported in Fed. Supp., 2020 WL 5775231
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Roberts v. New York Presbyterian Hospital, Queens, Not Reported in Fed. Supp. (2024)
2024 WL 1413030
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 1413030
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Jazmine I. ROBERTS, Plaintiff,
v.
NEW YORK PRESBYTERIAN
HOSPITAL, QUEENS, et al., Defendants.
24-CV-1352 (HG) (PK)
|
Signed April 2, 2024
Attorneys and Law Firms
Jazmine I. Robert, Flushing, NY, Pro Se.
MEMORANDUM AND ORDER
HECTOR GONZALEZ, United States District Judge:
*1 Plaintiff Jazmine I. Roberts commenced this pro se civil
action on February 22, 2024. ECF No. 1 (Complaint). On
the same day, Plaintiff moved to proceed in forma pauperis.
ECF No. 2 (Motion for Leave to proceed In Forma Pauperis).
Plaintiff's motion to proceed in forma pauperis is granted.
However, for the reasons stated herein, the Court dismisses
Plaintiff's Complaint.
FACTUAL BACKGROUND
Plaintiff filed her Complaint using the form complaint for
civil rights actions and alleges the basis for jurisdiction is
42 U.S.C. § 1983. ECF No. 1 at 4. Plaintiff's Complaint
is difficult to decipher as she does not identify the state
actors against whom she is pursuing her Section 1983 claim.
However, Plaintiff broadly alleges a claim relating to the
“denial of health care services” related to a visit on April 1,
2023, to New York Presbyterian Hospital in Queens. Id. at
4–5. While there, Plaintiff states that she was told that her
condition would not be treated with metronidazole. Id. at 5.
As a result, she states, her symptoms got worse, and she had
to go back to the hospital on April 15, 2023. Id. At the second
visit, Plaintiff received “extra stabilization treatment.” Id. at
6. Plaintiff attaches a series of exhibits, including a collection
notice for unpaid medical expenses related to her April 1
and April 15, 2023, hospital visits and discharge instructions
signed by Defendant Sara S. Verma 1 and another provider.
Id. at 8–23. The April 15, 2023, discharge instructions
include a prescription for metronidazole. Id. at 19. Plaintiff
requests an unspecified amount of compensatory and punitive
damages. Id. at 6.
1 The spelling of the Defendant's name in the
document differs from the spelling Plaintiff uses in
the Complaint.
LEGAL STANDARD
A complaint must plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). 2 A claim is plausible “when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57,
63 (2d Cir. 2011). Although all allegations contained in the
complaint are assumed to be true, this tenet is “inapplicable
to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
2 Unless noted, case law quotations in this Order
accept all alterations and omit all internal quotation
marks, citations, and footnotes.
A pro se complaint “must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007). The Court's obligation “to
construe a pro se complaint liberally” continues to apply
“[e]ven after Twombly” established the plausibility standard
for assessing pleadings. Newsome v. Bogan, 795 F. App'x 72,
72 (2d Cir. 2020). A district court shall dismiss an in forma
pauperis action where it finds the action “(i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who
is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
*2 “It is a fundamental precept that federal courts are
courts of limited jurisdiction and lack the power to disregard
such limits as have been imposed by the Constitution or
Congress. Perhaps the most important limit is subject-matter
jurisdiction, which defines a court's competence to adjudicate
a particular category of cases.” Platinum-Montaur Life Scis.,
LLC v. Navidea Biopharms., Inc., 943 F.3d 613, 616–17
(2d Cir. 2019). Subject matter jurisdiction “can never be
forfeited or waived. Consequently, defects in subject-matter
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jurisdiction require correction regardless of whether the error
was raised in district court.” See United States v. Cotton, 535
U.S. 625, 630 (2002); see also Fed R. Civ. P. 12(h)(3) (“If
the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”).
Federal courts have subject matter jurisdiction to hear cases
if the parties have diverse citizenship or if the issues arise
under federal law. See 28 U.S.C. § 1331 (federal courts have
“original jurisdiction over all civil actions arising under the
Constitution, laws, or treaties of the United States”); see also
28 U.S.C. § 1332(a) (federal courts have original jurisdiction
of cases between “citizens of different States” where the
“matter in controversy exceeds the sum or value of $75,000”).
DISCUSSION
Plaintiff fails to state a claim upon which relief may be
granted. For Plaintiff to bring a claim under Section 1983,
Plaintiff must show that the harm was “committed by a
person acting under color of state law,” and that the action
“deprived [the plaintiff] of rights, privileges, or immunities
secured by the Constitution or laws of the United States.”
Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010). Subject
to limited exceptions, Section 1983 does not apply to claims
against private individuals or private organizations. American
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50–51 (1999)
(“the under-color-of-state-law element of § 1983 excludes
from its reach merely private conduct”). A private entity
does not become a state actor merely because it (i) performs
under a state contract, (ii) accepts state or federal funds, or
(iii) is subject to state regulation. Cranley v. Nat'l Life Ins.
Co. of Vt., 318 F.3d 105, 112 (2d Cir. 2003) (“A finding
of state action may not be premised solely on the private
entity's creation, funding, licensing, or regulation by the
government.”); Rendell-Baker v. Kohn, 457 U.S. 830, 841
(1982) (“Acts of such private contractors do not become
acts of the government by reason of their significant or even
total engagement in performing public contracts.”); Jackson
v. Metro. Edison Co., 419 U.S. 345, 350 (1974) (“The mere
fact that a business is subject to state regulation does not by
itself convert its action into that of the State.”).
Defendant New York Presbyterian Hospital is a not-for-profit,
private hospital. See Gomez Nacer v. Div. of Gen. Med.,
NYPH, No. 20-cv-5197, 2020 WL 4605243, at *3 (S.D.N.Y.
Aug. 7, 2020). Defendant New York Presbyterian Hospital is
not considered a state actor, even if it is licensed and regulated
by the state. See White v. St. Joseph's Hosp., 369 F. App'x 225,
226 (2d Cir. 2010) (holding “private actors and institutions,”
such as hospitals, “are generally not proper § 1983 defendants
because they do not act under color of state law”); Kia P. v.
McIntyre, 235 F.3d 749, 757 n.3 (2d Cir. 2000) (“Our decision
in this case turns in large part on our conclusion that the
[private] [h]ospital was not a state actor when it provided
medical care to [plaintiff]”); Anthony v. Med. Staff at Inst., 409
F. Supp. 3d 102, 105 (E.D.N.Y. 2016) (citing cases holding
that private hospitals were not liable under Section 1983).
Additionally, Plaintiff has not alleged that the hospital or
its employee, Defendant Verma, have acted under color of
state law. Accordingly, “[b]ecause New York Presbyterian
Hospital is a private, non-profit hospital, and [the individual]
Defendant[ ] ... [is a] private part[y] who do[es] not work for
any state or other government body, Plaintiff fails to state a §
1983 claim against these [D]efendants.” Gomez Nacer, 2020
WL 4605243, at *3. Therefore, Plaintiff's Section 1983 claims
are dismissed for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii). 3
3 To the extent Plaintiff intends the Court to construe
her claims as alleging medical malpractice,
“allegations of medical malpractice or negligent
failure to provide treatment will not suffice to
support an action under 42 U.S.C. § 1983.” Sha
v. Mem'l Sloan-Kettering Cancer Ctr., No. 99-
cv-3233, 2000 WL 1760883, at *2 (S.D.N.Y. Nov.
30, 2000), aff'd sub nom. Sha (Engelhardt) v. Mem'l
Sloan Kettering Cancer Ctr., 29 F. App'x 788 (2d
Cir. 2002). “Claims for negligence and medical
malpractice arise under state law, and a federal
court generally will not have original jurisdiction
over the claims unless complete diversity exists.”
Urena v. Wolfson, No. 09-cv-1107, 2010 WL
5057208, at *13 (E.D.N.Y. Dec. 6, 2010). Plaintiff
resides in New York. ECF No. 1 at 2. The
Court takes judicial notice that Defendant New
York Presbyterian Hospital, Queens is also citizen
of New York. See OFFICE OF NEW YORK
ATT'Y GEN: Search Charities Database: New
York-Presbyterian/Queens, https://perma.cc/72P4-
SKGP (last visited April 2, 2024). Because both
Plaintiff and at least one Defendant are citizens of
New York, diversity jurisdiction does not exist.
*3 Although district courts typically allow pro se plaintiffs
an opportunity to amend their complaints, the Court denies
leave to amend because the nature of the defects in Plaintiff's
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Roberts v. New York Presbyterian Hospital, Queens, Not Reported in Fed. Supp. (2024)
2024 WL 1413030
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
claims would render any amendment futile. See, e.g., Abdul-
Rahman v. Brooklyn Hosp. Ctr., No. 10-cv-1697, 2010 WL
1838607, at *1 (E.D.N.Y. Apr. 30, 2010) (denying leave to
amend where court dismissed Section 1983 claims against
Brooklyn Hospital Center and its employees).
CONCLUSION
For the reasons set forth above, the Complaint is dismissed
for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)
(B)(ii). Any potential state law claims are dismissed without
prejudice.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal would not be taken in good faith and therefore in
forma pauperis status is denied for purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 1413030
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-01789-BKS-CBF Document 6 Filed 04/17/26 Page 29 of 138

Roberts v. Healthfirst, Not Reported in Fed. Supp. (2024)
2024 WL 1413032
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 1413032
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Jazmine I. ROBERTS, Plaintiff,
v.
HEALTHFIRST, Defendant.
24-CV-1556 (HG) (PK)
|
Signed April 2, 2024
Attorneys and Law Firms
Jazmine I. Roberts, Flushing, NY, Pro Se.
MEMORANDUM AND ORDER
HECTOR GONZALEZ, United States District Judge:
*1 Plaintiff Jazmine I. Roberts commenced this pro se civil
action on February 26, 2024. ECF No. 1 (Complaint). On
the same day, Plaintiff moved to proceed in forma pauperis.
ECF No. 2 (Motion for Leave to Proceed In Forma Pauperis).
Plaintiff's motion to proceed in forma pauperis is granted.
However, for the reasons stated herein, the Court dismisses
Plaintiff's Complaint.
FACTUAL BACKGROUND
Plaintiff filed her Complaint using the form complaint for
civil rights actions and alleges the basis for jurisdiction as
42 U.S.C. § 1983. ECF No. 1 at 4. Plaintiff's Complaint
is difficult to decipher, and she does not identify any state
actors against whom she is pursuing her Section 1983 claim.
Plaintiff broadly alleges a claim relating to the “denial of
health care benefits” and “Medicaid eligibility.” Id. at 4. She
states that the events occurred at Mount Vernon Montefiore
Hospital, CVS, RiteAid, and “my substance abuse program”
in Flushing, Queens, on February 23, and 24, 2024. Id.
at 5. Plaintiff describes receiving a letter from Healthfirst,
the only Defendant named in the complaint, and being
told by medical providers that her Medicaid and Healthfirst
identification cards were not active. Id. She states that her
“pre-existing medical illnesses” have worsened because the
providers and health insurance companies “aren't following
the Americans Dissibility [sic] Act and are overwhelming me
even with psychological abuse.” Id. at 6. Plaintiff requests an
unspecified amount of compensatory and punitive damages.
Id.
LEGAL STANDARD
A complaint must plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). 1 A claim is plausible “when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57,
63 (2d Cir. 2011). Although all allegations contained in the
complaint are assumed to be true, this tenet is “inapplicable
to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
1 Unless noted, case law quotations in this Order
accept all alterations and omit all internal quotation
marks, citations, and footnotes.
A pro se complaint “must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007). The Court's obligation “to
construe a pro se complaint liberally” continues to apply
“[e]ven after Twombly” established the plausibility standard
for assessing pleadings. Newsome v. Bogan, 795 F. App'x 72,
72 (2d Cir. 2020). A district court shall dismiss an in forma
pauperis action where it finds the action “(i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who
is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
DISCUSSION
Plaintiff fails to state a claim upon which relief may be
granted. For Plaintiff to bring a claim under Section 1983,
Plaintiff must show that the harm was “committed by a
person acting under color of state law,” and that the action
“deprived [the plaintiff] of rights, privileges, or immunities
secured by the Constitution or laws of the United States.”
Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010). Subject
to limited exceptions, Section 1983 does not apply to claims
against private individuals or private organizations. American
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50–51 (1999)
(“the under-color-of-state-law element of § 1983 excludes
from its reach merely private conduct”). A private entity
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Roberts v. Healthfirst, Not Reported in Fed. Supp. (2024)
2024 WL 1413032
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
does not become a state actor merely because it (i) performs
under a state contract, (ii) accepts state or federal funds, or
(iii) is subject to state regulation. Cranley v. Nat'l Life Ins.
Co. of Vt., 318 F.3d 105, 112 (2d Cir. 2003) (“A finding
of state action may not be premised solely on the private
entity's creation, funding, licensing, or regulation by the
government.”); Rendell-Baker v. Kohn, 457 U.S. 830, 841
(1982) (“Acts of such private contractors do not become
acts of the government by reason of their significant or even
total engagement in performing public contracts.”); Jackson
v. Metro. Edison Co., 419 U.S. 345, 350 (1974) (“The mere
fact that a business is subject to state regulation does not by
itself convert its action into that of the State.”).
*2 Defendant Healthfirst is a not-for-profit, private health
insurer that contracts with the State of New York to offer
health coverage for Medicaid-eligible individuals. 2 Plaintiff
has not alleged that Healthfirst has acted under color of
state law or violated any of her constitutional rights. A
defendant's affiliation with Medicaid programs does not make
that defendant a state actor. See, e.g., Houston v. Highland
Care Ctr., Inc., No. 23-cv-8186, 2024 WL 638721, at *2
(E.D.N.Y. Jan. 26, 2024) (“The defendant is not a state actor
simply because it participated in Medicare and Medicaid
programs.”); see also Veldhuis v. Geico Gen. Ins. Co., No. 22-
cv-1042, 2023 WL 319576, at *4 (D. Conn. Jan. 19, 2023)
(“The Supreme Court has rejected an argument that a private
insurance company constitutes a ‘state actor’ for purposes of §
1983 simply because the insurance company is subject to state
regulation.”). Plaintiff's Section 1983 claims are therefore
dismissed for failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii).
2 See HealthFirst: Health Insurance for New
Yorkers, About us, https://healthfirst.org/about-us
(last visited April 2, 2024); see also Kane ex rel.
U.S. v. Healthfirst, Inc., 120 F. Supp. 3d 370, 376
(S.D.N.Y. 2015) (describing the contract between
Healthfirst and the New York State Department of
Health to provide certain services to its Medicaid-
eligible enrollees).
Plaintiff additionally asserts a violation under the Americans
with Disabilities Act (“ADA”). ECF No. 1 at 6. To
establish a violation under the ADA, Plaintiff must show
(1) that she is a “qualified individual” with a disability;
(2) that Defendant is subject to the ADA; and (3) that
she was denied the opportunity to participate in or benefit
from Defendant's services, programs, or activities, or was
otherwise discriminated against by the Defendant, by reason
of her disability. Henrietta D v. Bloomberg, 331 F.3d 261,
272 (2d Cir. 2003); see also 42 U.S.C. § 12132 (“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 any such entity.”). The ADA
defines a “disability” as “a physical or mental impairment
that substantially limits one or more major life activities.”
42 U.S.C. § 12102. “There can be no action for violation
of the ADA without an allegation that the complained of
deprivation was a result of the plaintiff's disability.” Aquino v.
Prudential Life and Cas. Ins. Co., 419 F. Supp. 2d 259, 277–
78 (E.D.N.Y. 2005) (citing Baker v. New York, 04-cv-6221,
2004 WL 1682780 (W.D.N.Y. May 28, 2004)). Although
Plaintiff invokes the ADA, she provides no facts suggesting
that she is disabled under the ADA. Even assuming Plaintiff's
“pre-existing medical illness” qualified as a disability under
the ADA, see ECF No. 1 at 6, Plaintiff fails to establish that
Defendant discriminated against her because of her alleged
disability. Because Plaintiff fails to establish any causal
relationship between her alleged disability and Defendant's
actions, her ADA claim fails. See Buckley v. Med. Bd. &
Psychs. Of Respective States, No. 17-cv-8450, 2017 WL
8777380, at *2–3 (S.D.N.Y. Nov. 28, 2017) (dismissing ADA
claim where plaintiff did not allege any disability or alleged
any causal connection between the alleged disability and
defendants’ actions). Plaintiff's ADA claims are therefore
dismissed for failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii).
Although district courts typically allow pro se plaintiffs an
opportunity to amend their complaints, the Court denies leave
to amend because the nature of the defects in Plaintiff's claims
would render any amendment futile. See, e.g., Houston, 2024
WL 638721, at *3 (denying leave to amend where court
dismissed Section 1983 claims against a private entity that
participated in Medicare and Medicaid programs); Buckley,
2017 WL 8777380, at *3 (denying leave to amend where court
dismissed ADA claims against medical providers).
CONCLUSION
*3 For the reasons set forth above, the Complaint is
dismissed for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii). Any potential state law claims are
dismissed without prejudice.
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Roberts v. Healthfirst, Not Reported in Fed. Supp. (2024)
2024 WL 1413032
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal would not be taken in good faith and therefore in
forma pauperis status is denied for purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 1413032
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-01789-BKS-CBF Document 6 Filed 04/17/26 Page 32 of 138

Houston v. Highland Care Center, Inc., Not Reported in Fed. Supp. (2024)
2024 WL 638721
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 638721
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Leonard W. HOUSTON, Plaintiff,
v.
HIGHLAND CARE CENTER, INC., Defendant.
23-CV-8186 (AMD) (LB)
|
Signed January 26, 2024
Attorneys and Law Firms
Leonard W. Houston, Middletown, NY, Pro Se.
MEMORANDUM DECISION AND ORDER
ANN M. DONNELLY, United States District Judge:
*1 The plaintiff brings this pro se action under 42 U.S.C. §
1983 alleging that the defendant, Highland Care Center, Inc.,
violated federal and state law by committing financial abuse
and providing substandard care. The plaintiff's application
to proceed in forma pauperis pursuant to 28 U.S.C. § 1915
is granted. For the reasons stated below, the complaint is
dismissed.
BACKGROUND
The plaintiff brings this action as the sole beneficiary of
his late father's estate against Highland Care Center, Inc.
(“Highland”), a private nursing home care facility located
in Jamaica, New York. 1 (ECF No. 1 at 3–4.) The plaintiff
alleges that his late father, who resided at Highland from April
1997 until his death on January 19, 2000, was “a victim of
continuous financial abuse and substandard care.” (Id. at 3, 6,
7.) Specifically, the plaintiff asserts that the defendant “sought
and secured a financial guarantee by a form of deceit,” and
“ ‘double-bill[ed]’ and ... force[d] member(s) under duress
to make a separate payment(s) for an item(s) or service(s)
already covered by the Medicaid per-diem rate.” (Id. at
8.) The plaintiff further alleges that the defendant was
“certified for participation in both the Medicare and Medicaid
programs” and “required a resident's family member under
deceit and duress to become financially responsible for
nursing facility expenses.” (Id.) The plaintiff seeks injunctive
relief and money damages. (Id. at 20.)
1 On April 13, 1999, the plaintiff initiated a similar
action on behalf of his father against Highland,
Houston v. Highland Care Center, Inc., No. 99-
CV-2047. On June 8, 1999, Magistrate Judge
Roanne Mann ruled that the plaintiff could not
represent his father without counsel, but gave
the plaintiff time to retain counsel, or to file an
application for pro bono counsel. Judge Eugene
N. Nickerson denied the plaintiff's application to
appoint counsel; the Second Circuit dismissed the
plaintiff's appeal of that decision. On October 27,
2000, Judge Nickerson dismissed the case because
the plaintiff did not appear at a September 2000
hearing and stopped communicating with the court.
Twenty-two years later, on September 19, 2022,
the plaintiff filed a Rule 60(b)(6) motion seeking
to overturn Judge Nickerson's Order. The case
was reassigned to me, and I denied the motion as
untimely on October 4, 2022. The Second Circuit
dismissed the plaintiff's appeal because it lacked an
arguable basis either in law or in fact.
LEGAL STANDARD
At the pleadings stage of the proceeding, the Court
must assume the truth of “all well-pleaded, nonconclusory
factual allegations” in the complaint. Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010) (citing
Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A complaint must
plead sufficient facts to “state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Pro se complaints are held to less stringent standards
than pleadings drafted by attorneys and the Court is required
to read the plaintiff's pro se complaint liberally and interpret
it as raising the strongest arguments it suggests. Erickson v.
Pardus, 551 U.S. 89 (2007); Hughes v. Rowe, 449 U.S. 5,
9 (1980); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d
185, 191–93 (2d Cir. 2008). A district court must dismiss
an in forma pauperis action if the action “(i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who
is immune from such relief.” 28 U.S.C. §§ 1915(e)(2)(B).
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Houston v. Highland Care Center, Inc., Not Reported in Fed. Supp. (2024)
2024 WL 638721
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
DISCUSSION
I. Pro Se Claims on Behalf of the Estate
*2 A plaintiff has the right to proceed pro se in civil actions.
See 28 U.S.C. § 1654 (“In all courts of the United States the
parties may plead and conduct their own cases personally or
by counsel as, by the rules of such courts, respectively, are
permitted to manage and conduct causes therein.”). However,
a person, like the plaintiff, who has not been admitted to the
practice of law may not represent anyone other than himself.
Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir. 2007) (noting
that Section 1654 “does not permit unlicensed laymen to
represent anyone else other than themselves” (citation and
internal quotation marks omitted)); Iannaccone v. Law, 142
F.3d 553, 558 (2d Cir. 1998) (explaining “because pro se
means to appear for one's self, a person may not appear on
another person's behalf in the other's cause ... [but] must be
litigating an interest personal to him”); Pridgen v. Andresen,
113 F.3d 391, 393 (2d Cir. 1997) (“[A] person ordinarily may
not appear pro se in the cause of another person or entity.”).
An administrator or executor of an estate “may not proceed
pro se when the estate has beneficiaries or creditors other than
the litigant.” See Pridgen, 113 F.3d at 393. However, if the
administrator is the sole beneficiary and creditor of the estate,
he may proceed pro se on the estate's behalf. See Guest v.
Hansen, 603 F.3d 15, 21 (2d Cir. 2010) (“[T]he administrator
and sole beneficiary of an estate with no creditors may appear
pro se on behalf of the estate.”). Here, the plaintiff states
that he is the sole beneficiary of his father's estate (ECF No.
1 at 4), but does not allege that the estate has no creditors.
Accordingly, the plaintiff may not prosecute the action pro
se. See Orvieto v. United States, No. 8-CV-01, 2008 WL
4424374, at *2 (E.D.N.Y. Sept. 29, 2008) (dismissing an
action prosecuted pro se on behalf of the plaintiff's father's
estate for failure to obtain counsel where he did not establish
that there were no other creditors of the estate and the court
had issued the plaintiff several warnings to obtain counsel).
II. Section 1983 Claims
Furthermore, in order to maintain a § 1983 action, a plaintiff
must allege that “the conduct complained of [was] committed
by a person acting under color of state law,” and “deprived
a person of rights, privileges or immunities secured by the
Constitution or laws of the United States.” Pitchell v. Callan,
13 F.3d 545, 547 (2d Cir. 1994). Section 1983 does not
extend to harms caused by private individuals or private
organizations. The Supreme Court has held that “the under-
color-of-state-law element of § 1983 excludes from its reach
merely private conduct, no matter how discriminatory or
wrongful.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.
40, 50 (1999) (quotations omitted). Although the under-color-
of-state-law requirement can be applied to private individuals
and institutions in certain limited circumstances, such as
where the private institution is engaged in a “public function”
or performs conduct that is “fairly attributable to the state,”
id. at 51, these exceptions are narrow.
The defendant is not a state actor simply because it
participated in Medicare and Medicaid programs. A private
entity does not become a state actor merely by (i) performing
under a state contract, (ii) by accepting state or federal funds,
or (iii) because it is subject to state regulation. Cranley v.
Nat'l Life Ins. Co. of Vt., 318 F.3d 105, 112 (2d Cir. 2003)
(“A finding of state action may not be premised solely on
the private entity's creation, funding, licensing, or regulation
by the government.”); Blum v. Yaretsky, 457 U.S. 991 (1982)
(finding that private nursing homes were not state actors, even
though they accepted Medicaid funds and were subjected to
Medicaid regulations); Rendell-Baker v. Kohn, 457 U.S. 830,
841 (1982) (“Acts of such private contractors do not become
acts of the government by reason of their significant or even
total engagement in performing public contracts.”); Jackson
v. Metro. Edison Co., 419 U.S. 345, 350 (1974) (“The mere
fact that a business is subject to state regulation does not
by itself convert its action into that of the State.”). Thus,
the defendant's participation in and regulation by federal and
state programs does not convert it into a state actor subject to
liability under 42 U.S.C. § 1983 to convey federal question
jurisdiction.
*3 Even if the plaintiff had a viable claim under 42 U.S.C.
§ 1983—and he does not—the claim is barred by the statute
of limitations. “Section 1983 actions filed in New York
are ... subject to a three-year statute of limitations.” Hogan
v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013); see also Okure
v. Owens, 816 F.2d 45, 47 (2d Cir. 1987) (“[T]he proper
limitation to apply to all section 1983 claims in New York
is three years.”), aff'd, 488 U.S. 235 (1989). The plaintiff's
claims arise from acts that occurred at least 23 years ago. (See
ECF No. 1 at 3, 6.)
III. Claims Under Medicare-Medicaid Anti-Fraud and
Abuse Statute
The plaintiff brings claims under the Medicare-Medicaid
Anti-Fraud statute 42 U.S.C. § 1320a-7b. Federally funded
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Houston v. Highland Care Center, Inc., Not Reported in Fed. Supp. (2024)
2024 WL 638721
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
programs, including Medicare and Medicaid, are subject to
the federal health care fraud statute, see 42 U.S.C. § 1320a-7b,
but this statute “does not provide individuals with the right to
bring a cause of action to enforce its provisions.” Disame v.
Kantharia, No. 23-CV-7102, 2023 WL 6879614, at *3 & n.4
(E.D.N.Y. Oct. 18, 2023) (quoting Mercer v. Westchester Med.
Ctr., No. 21-CV-8268, 2021 WL 5567617, at *3 (S.D.N.Y.
Nov. 29, 2021)); see also Riddles v. Parakh, No. 08-CV-2373,
2008 WL 4298318, at *2 (E.D.N.Y. Sept. 16, 2008) (finding
that the federal health care fraud statute does not grant
individuals the right to bring private legal action for claims
related to Medicaid or Medicare fraud). The plaintiff therefore
has no right to bring Medicare or Medicaid fraud claims.
IV. Claims Under 42 C.F.R. § 483
Nor does the plaintiff have a right of action under 42
C.F.R. Part 483, which provides federal regulations related
to requirements for residents in long-term care facilities.
These regulations do not provide a private cause of action.
Udoinyion v. Gouverneur Health Care Svcs., 18-CV-1055,
2018 WL 4539652, at *2 (S.D.N.Y. Sept. 20, 2019) (citing
Schneller v. Crozer Chester Med. Ctr., 387 F. App'x 289, 293
(3d Cir. 2010)).
V. Claims Under State Law
Finally, the Court declines to exercise supplemental
jurisdiction over any potential state law claims. See Kolari
v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.
2006) (“Subsection (c) of § 1367 confirms the discretionary
nature of supplemental jurisdiction.” (internal quotations and
citation omitted)).
VI. Leave to Amend
The Second Circuit has held that leave to replead should be
liberally granted to pro se litigants. See Grullon v. City of
New Haven, 720 F.3d 133, 140 (2d Cir. 2013) (“[A] pro se
complaint generally should not be dismissed without granting
the plaintiff leave to amend at least once ....”); see also
Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). “[B]ut
amendment should be denied where the complaint gives no
‘indication that a valid claim might be stated.’ ” McKie v.
Kornegay, No. 21-1943, 2022 WL 4241355, *3 (2d Cir. Sept.
15, 2022) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000)). In this case, granting leave to amend would be
futile. Accordingly, the case is dismissed.
CONCLUSION
The plaintiff's complaint, filed in forma pauperis, is dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal would not be taken in good faith and therefore in
forma pauperis status is denied for the purpose of any appeal.
Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
*4 SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 638721
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-01789-BKS-CBF Document 6 Filed 04/17/26 Page 35 of 138

Syville v. City of New York, Not Reported in Fed. Supp. (2023)
2023 WL 8258020
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 8258020
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Alphonso SYVILLE, Plaintiff,
v.
CITY OF NEW YORK, et al., Defendants.
22-CV-8009 (LTS)
|
Signed November 29, 2023
Attorneys and Law Firms
Alphonso Syville, New York, NY, Pro Se.
ORDER OF DISMISSAL
LAURA TAYLOR SWAIN, Chief United States District
Judge:
*1 Plaintiff, who is appearing pro se, filed this action
invoking the Court's federal question jurisdiction and alleging
that Defendants violated his federally protected rights in the
shelter system. Because Plaintiff's complaint contained no
facts from which the Court could discern the claims he was
attempting to bring against the defendants, on May 1, 2023,
the Court directed Plaintiff to amend his complaint within 60
days, to address the deficiencies in his pleadings. Plaintiff
filed an amended complaint on June 15, 2023. For the reasons
set forth below, the Court dismisses this action.
BACKGROUND
In the original complaint, Plaintiff named as defendants
(1) the City of New York, (2) Paul Hargrow, an employee
of the New York City Department of Homeless Services
(“DHS”), and (3) Smila Kodali, an employee of the New
York City Health + Hospitals Corporation at “Elmhurst
Medical Department” in Upper Manhattan. (ECF 2, at 3.)
He asserted that the defendants discriminated, harassed,
and retaliated against him in violation of multiple federal
statutes, including 42 U.S.C. § 1983, the Americans with
Disabilities Act (“ADA”), the “Human Rights Act,” the Fair
Housing Act (“FHA”), and the Health Insurance Portability
and Accountability Act of 1996 (“HIPAA”). (Id.) Plaintiff
asserted that his claims arose from events occurring inside
DHS's shelters and hotels during the Covid-19 pandemic,
from March 2020 to May 2021, and referred the Court to
nonexistent documents. In the May 1, 2023 order, the Court
directed Plaintiff to submit an amended complaint with a short
and plain statement of the relevant facts from which his claims
arose.
In the amended complaint, Plaintiff again names the City
of New York, Hargrow, and Kodali as defendants, but he
now adds Ms. Estrada, identified as a supervisor at the
Help Meyer Men's Shelter on Ward's Island (“Help Meyer
shelter”), as a new defendant. The amended complaint is a 90-
page document consisting of the court's amended complaint
form interspersed with Plaintiff's statement of claim, multiple
letters with additional facts concerning his claims, and various
documents relating to Plaintiff's housing at shelters and his
alleged disabilities. Plaintiff asserts that Defendants have
discriminated, harassed, and retaliated against him while
he was in the shelter system in violation of the ADA, the
Rehabilitation Act of 1973, the FHA, HIPAA, the “Human
Rights Act,” and the “COVID-19 Act.” (ECF 6, at 2.) 1
1 The Court quotes from the amended complaint
verbatim. All spelling, grammar, and punctuation
are as in the original, unless noted otherwise.
The following information is taken from the amended
complaint and attachments. From 2010 to 2021, Plaintiff has
been a resident of various homeless shelters in New York City
and during that time, he has become physically disabled with
damage to his lower back, and in 2017, he was diagnosed
with mental illness, anxiety and major depression, which he
attributes to the shelter system. (Id. at 6.) Beginning in March
2020, primarily at the Help Meyer shelter, staff members
deprived Plaintiff of his rights largely in retaliation for his
advocacy concerning shelter conditions.
*2 In April 2020, Defendant Kodali “refused [Plaintiff]
services” by asking him during a psychological evaluation
inside the Elmhurst Hospital clinic in the Help Meyer shelter,
“[W]hy are you in the shelter?” and “Who your mother and
father?” (Id. at 5, 10.) Plaintiff interpreted the comments
as Defendant Kodali implying that his parents should be
helping him in securing an apartment, and he found them
“insulting” and “unprofessional.” (Id.) He tried to continue
with the evaluation, but he felt “uncomfortable,” had a panic
attack, and walked out. (Id. at 10.) Plaintiff was “off [his]
medication” at the time, and it took him another six months
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after this incident to get his medication from another doctor.
(Id.)
Plaintiff reported the incident with Defendant Kodali to DHS
and Defendant Hargrow, and requested a transfer from the
shelter because of his medical conditions and the Covid-19
virus. Defendant Hargrow, however, stated that, Plaintiff
“didn't have anything wrong with [him] and that [he] will
be alright inside the shelters at the height of the covid
pandemic.” (Id. at 10.) Plaintiff asserts that this “made them
refuse to move [him] for his safety during the height of
the Covid-19 pandemic,” while 20,000 men with similar
disabilities as his were placed in hotel rooms. (Id. at 5, 11.)
He believes that because Defendant Hargrow “didn't say the
truth,” he remained at the Help Meyer shelter, where he had
to “endure a lot of retaliation from the staff” and attempt to
avoid the virus. (Id. at 6.)
In May 2020, Plaintiff settled a lawsuit he had filed in this
court in 2019, Syville v. City of New York, No. 19-CV-9988
(S.D.N.Y. June 10, 2020) (“Syville I”), in which he had
asserted disability discrimination and assault claims against
the City of New York and a DHS officer. 2 The next month,
June 2020, he filed another action in this court against the
City of New York and several of its employees, including
Kodali and Hargrow, alleging discrimination in the provision
of shelter services and retaliation against him for the filing
of Syville I and his advocacy for the homeless. 3 See Syville
v. City of New York, No. 20-CV-4633 (PGG), 2022 WL
16541162 (S.D.N.Y. Oct. 28, 2022) (“Syville II”).
2 On June 10, 2020, Judge Valerie Caproni dismissed
Syville I with prejudice following notification by
the parties that a settlement agreement had been
reached. See Syville I, No. 19-CV-9988, ECF 30
(S.D.N.Y. June 10, 2020). Plaintiff had executed a
General Release with the City of New York that
barred him from bringing civil rights claims that
arose before June 17, 2020, against the City or
its employees. Id., ECF 32-33. On April 6, 2023,
Plaintiff filed a motion to reopen the case, see id.,
ECF 38, which is still pending.
3 In Syville II, Plaintiff asserted that, beginning in
March 2020, staff members forced him out of
the Help Meyer shelter against his will, falsified
statements, refused him medication, kept him in
dangerous and unsanitary living conditions, denied
him services, held his mail, refused him food, and
failed to follow precautions to prevent the spread
of the Covid-19 virus. See Syville II, No. 20-
CV-4633, ECF 2, at 5. Plaintiff also alleged a wide
ranging conspiracy to retaliate against him for his
advocacy for safety measures, which included the
continued violation of his rights by staff members
at multiple shelters and Hargrow's rejection of
his request for a transfer to a hotel room. On
October 28, 2022, Judge Paul G. Gardephe adopted
Magistrate Judge James L. Cott's Report and
Recommendation, which recommended that the
defendants' motion to dismiss be converted to one
for summary judgement and that the defendants'
summary judgment motion be granted. See Syville
II, 2022 WL 16541162, at *1, adopting report and
recommendation, 2022 WL 1549795, at *4 (May
17, 2022).
*3 Plaintiff alleges in this action that from May 2020 to
January 2021, he was subjected to multiple acts of retaliation
for filing the two complaints and his advocacy on homeless
shelters, which included submitting a petition with 25 other
shelter residents to the director of the Help Meyer shelter. The
alleged retaliatory conduct included (1) not moving him to a
hotel room in May 2020; (2) unspecified retaliatory acts from
Pernell, a food server whom he sued in Syville II; (3) his case
manager's refusal to make him copies of his complaints and
other documents although all libraries were closed because of
Covid-19; (4) not getting his medications after the incident
with Defendant Kodali because he was “scared to death
[about] reaching out to Ms. Mack for help” (id. at 12); and (5)
shelter staff “messing with his mail,” not giving it to him in a
timely manner, or returning it to the sender (id. at 8, 12).
Plaintiff alleges that he was subjected to other deprivations
at the Help Meyer shelter. In November 2020, he was
denied medical treatment by two different doctors at the
shelter clinic, and by December 2020, he found himself
surrounded by residents at the Help Meyer shelter who
were not concerned about the Covid-19 virus, including
“[s]ex offenders, [u]ndocumented [m]igrants, drug users and
[a]lcoholic[s].” (Id. at 14.) Plaintiff hoped that he did not
contract the virus and “immediately beg[a]n to advocate to the
director about the environment they [were] keeping [him] in
as a form or retaliation against him.” (Id.) On January 1, 2021,
Plaintiff was transferred to a hotel in Queens, New York.
On the day of the transfer, Defendant Estrada got mad at
Plaintiff after he refused to take the MTA to the hotel because
“they [were] supposed to send [him] transportation for [him]
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and [his] property to and from the hotel.” (Id. at 15.) She
asked him to wait in the cold and called the police when he
refused. After the police arrived, Plaintiff was allowed to wait
in his room at the shelter for his transportation. When Plaintiff
arrived at the hotel, he learned that Defendant Estrada, who
worked at the hotel at night, had “put [his] life at risk” by
placing him in a hotel room with a roommate, where the beds
were only three feet apart instead of the recommended six feet
apart to prevent the spread of Covid. (Id. at 8.) Plaintiff asserts
that this was “traumatiz[ing].” (Id. at 16.)
In February 2021, Plaintiff obtained a single occupancy hotel
room where he “felt safe from the covid and retaliation
[he had] been experiencing.” (Id. at 17.) In April 2021,
however, the staff at BronxWorks' Jerome Avenue Men's
Shelter (“JAMS”), where Plaintiff had been staying, threw
all of his clothes away because he had written them up for
throwing away his “psych meds” a few weeks before. (Id.)
Plaintiff had started to receive unemployment benefits and
was able to purchase new clothes.
On August 3, 2021, after eleven years in the shelter system,
the Coalition for the Homeless assisted Plaintiff in obtaining
his own apartment:
It took coalition for the Homeless
1 year to do what DHS wouldn't
do in 10 years. To teach me a
lesson about advocating against DHS,
they retaliation against me was not
to give me housing. The [f]ederal
[l]awsuit which DHS didn't respect
and retaliated against me every
opportunity they got.
(Id.) He seeks five million dollars in damages.
DISCUSSION
A. Claim Preclusion
Plaintiff raises claims regarding allegedly unlawful
conditions at homeless shelters in New York City, including
his mistreatment as a mentally ill resident, the inadequate
response to the Covid-19 virus, and what he perceived as a
campaign of retaliation against him for his advocacy against
DHS and his filing of lawsuits in this court. Most of Plaintiff's
claims, however, concern his residency at the Help Meyer
shelter and were previously raised in Syville II. He sued in
that action the City of New York, Hargrow, Kodali, and four
staff members of the Help Meyer shelter (Johnson, Robinson,
Brown, and Pernal). Robinson was terminated from the case
at Plaintiff's request, see id., ECF 10-11, and Johnson, Brown,
and Pernal were later dismissed pursuant to a joint stipulation,
see id., ECF 39, 41-42. On October 28, 2022, Judge Paul G.
Gardephe adopted Magistrate Judge James L. Cott's Report
and Recommendation, which recommended that the motion
to dismiss by the remaining defendants – the City of New
York, Hargrow, and Kodali – be converted to one for summary
judgment and that the defendants' summary judgment motion
be granted. See Syville II, 2022 WL 16541162, at *1, adopting
report and recommendation, 2022 WL 1549795, at *4. Judge
Cott had found that the settlement agreement in Syville I
barred Plaintiff from bringing civil rights claims that arose
before June 17, 2020, against the City or its employees.
Id., 2022 WL 1549795, at *6. Judge Cott determined that
Plaintiff's claims in Syville II were premised on conduct that
occurred prior to June 17, 2020, and were therefore covered
by the settlement agreement. Id. Judge Gardephe agreed with
Judge Cott, finding that the General Release was enforceable
in Syville II, and granted the defendants' motion for summary
judgment on that basis. Syville II, 2022 WL 16541162, at
*7-8.
*4 Plaintiff reiterates in this action the following claims
from Syville II: (1) in April 2020, Kodali made comments
about his parents which caused him anxiety and effectively
denied him mental health services and medications; (2)
Hargrow and DHS denied his transfer request to a hotel
room during the Covid-19 pandemic; (3) he was subjected to
violations in the shelter system, including retaliatory acts for
his advocacy and filings of lawsuits. Plaintiff's claims arising
out of the same conduct previously litigated in Syville II are
barred under the doctrine of claim preclusion. 4
4 Although claim preclusion is an affirmative
defense to be pleaded in a defendant's answer,
see Fed. R. Civ. P. 8(c), the Court may, on its
own initiative, raise the issue. See, e.g., Grieve
v. Tamerin, 269 F.3d 149, 154 (2d Cir. 2001)
(affirming district court's dismissal on grounds
of issue preclusion even though defendant failed
to plead that defense, and noting that “principles
of preclusion involve” not only “the rights and
interests of the parties,” but also “important
interests of the public and the courts in avoiding
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repetitive litigation and potentially inconsistent
decisions”).
Under the doctrine of claim preclusion, also known as “res
judicata,” a litigant may not bring a new case that includes
claims or defenses that were or could have been raised in an
earlier case in which the same parties were involved if that
case resulted in a judgment on the merits. Brown v. Felsen,
442 U.S. 127, 131 (1979). Claim preclusion “prevents parties
from raising issues that could have been raised and decided in
a prior action – even if they were not actually litigated.” Lucky
Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., 140 S.
Ct. 1589, 1594 (2020). Claim preclusion generally applies if:
“(1) the prior decision was a final judgment on the merits, (2)
the litigants were the same parties, (3) the prior court was of
competent jurisdiction, and (4) the causes of action were the
same.” In re Motors Liquidation Co., 943 F.3d 125, 130 (2d
Cir. 2019) (citation and internal quotation marks omitted).
To determine whether a claim could have been raised in an
earlier action, courts look to whether the present claim arises
out of the same transaction or series of transactions asserted
in the earlier action, see Pike v. Freeman, 266 F.3d 78, 91
(2d Cir. 2001), or, in other words, whether facts essential to
the second suit were present in the first suit, NLRB v. United
Techs. Corp., 706 F.2d 1254, 1260 (2d Cir. 1983). Claims are
treated as the same if they “arise from the same transaction, or
involve a common nucleus of operative facts.” Cayuga Nation
v. Tanner, 6 F.4th 361, 375 (2d Cir. 2021) (quoting Lucky
Brand Dungarees, 140 S. Ct. at 1595). “A party cannot avoid
the preclusive effect of res judicata by asserting a new theory
or a different remedy.” Brown Media Corp. v. K&L Gates,
LLP, 854 F.3d 150, 157 (2d Cir. 2017) (internal quotation
marks and citation omitted).
Here, all of the requirements for claim preclusion are satisfied
with respect to Plaintiff's claims against Hargrow and Kodali
and some of his claims against the City of New York. First,
Plaintiff filed an earlier action that was adjudicated on the
merits; second, the action involved the same parties, Hargrow,
Kodali, and the City of New York; third, the prior court was
of competent jurisdiction; and fourth, the claims asserted in
this action were, or could have been, raised in the prior action.
See In re Motors Liquidation Co., 943 F.3d at 130. The Court
therefore finds that all claims against Hargrow and Kodali,
and claims asserted against the City of New York that arose
before June 17, 2020, are barred under the doctrine of claim
preclusion and must be dismissed for failure to state a claim
on which relief may be granted. See 28 U.S.C. § 1915(e)(2)
(B)(ii); Conopco, Inc. v. Roll Int'l, 231 F.3d 82, 86 (2d Cir.
2000) (holding that dismissal for failure to state a claim is
appropriate where “it is clear from the face of the complaint,
and matters of which the court may take judicial notice, that
the plaintiff's claims are barred as a matter of law” by claim
preclusion).
B. Claims under 42 U.S.C. § 1983
*5 Plaintiff's remaining claims are against Defendant
Estrada and the City of New York and concern alleged
violations of his rights at shelters after June 17, 2020, the
date of the general release discussed in Syville II. He alleges
the following: (1) the denial of medical care at the Help
Meyer shelter clinic; (2) the failure of residents and staff to
follow Covid precautions; (4) housing him with undesirable
residents, some of whom were sex offenders and substance
abusers; (5) his case manager refusing to make copies of his
legal papers and other documents; (6) not receiving his mail
in a timely manner; (7) Defendant Estrada attempting to make
him wait in the cold for transportation; (8) Defendant Estrada
placing him in a hotel room without the recommended six
feet distance between him and his roommate; and (9) staff at
JAMS throwing his medications and clothes away. Plaintiff
attributes all these actions to retaliation for his continued
advocacy on shelter conditions.
Because Plaintiff indicates that DHS and the City of New
York are responsible for the shelters, and he characterizes
his claims as constitutional and statutory violations, the
remaining claims can be construed as ones asserted under
42 U.S.C. § 1983. Section 1983 provides redress for a
deprivation of federally protected rights by persons acting
under color of state law. 42 U.S.C. § 1983; Flagg Bros., Inc. v.
Brooks, 436 U.S. 149, 155-57 (1978). To state a claim under
Section 1983, a plaintiff must allege both that: (1) a right
secured by the Constitution or laws of the United States was
violated, and (2) the right was violated by a person acting
under the color of state law. West v. Atkins, 487 U.S. 42, 48
(1988).
1. Claims against Defendant Estrada
A claim for relief under Section 1983 must allege facts
showing that each defendant acted under the color of a state
“statute, ordinance, regulation, custom or usage.” 42 U.S.C.
§ 1983. Private parties therefore generally are not liable
under the statute. Sykes v. Bank of Am., 723 F.3d 399, 406
(2d Cir. 2013) (citing Brentwood Acad. v. Tenn. Secondary
Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)); see also
Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir.
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2002) (“[T]he United States Constitution regulates only the
Government, not private parties.”).
The activity of a private entity can be attributed to the state in
three situations: (1) the entity acts using the coercive power
of the state or is controlled by the state (the “compulsion
test”); (2) the entity willfully participates in joint activity
with the state or its functions are entwined with state policies
(the “joint action” or “close nexus” test); or (3) the state has
delegated a public function to the entity (the “public function”
test). See Fabricant v. French, 691 F.3d 193, 207 (2d Cir.
2012). The fundamental question under each test is whether
the private entity's challenged actions are “fairly attributable”
to the state. Id. (citing Rendell-Baker v. Kohn, 457 U.S. 830,
838 (1982)).
In analyzing whether a private entity acts under color of
state law for purposes of Section 1983, the district court
begins “by identifying the specific conduct of which the
plaintiff complains,” rather than the general characteristics
of the entity. Id. Providing housing is not a public function
because it is not the exclusive province of the state. See, e.g.,
George v. Pathways to Hous., Inc., No. 10-CV-9505 (ER),
2012 WL 2512964, at *4 (S.D.N.Y June 29, 2012) (“It is
well established that the provision of low-cost supportive
housing is not a ‘public function.’ ”). The fact that an
entity receives public funds does not turn private action into
state action. See Rendell-Baker, 457 U.S. at 840; see also
Ortega v. Samaritan Vill. Myrtle Ave. Men's Shelter, No. 18-
CV-5995 (KAM), 2020 WL 1043305, at *4 (E.D.N.Y. Mar.
4, 2020) (“[T]he provision of homeless services by a private
organization, even under contract with the state or where
subject to governmental regulation, does not turn the private
organization or its employees into state actors.” (citation and
internal quotation marks omitted)).
*6 Here, Plaintiff brings claims against Defendant Estrada,
whom he identifies as a supervisor at the Help Meyer shelter,
which is operated by a private entity, not the DHS. See
Syville II, No. 22-CV-4633 (PGG), 2020 WL 4750650, at *2
(S.D.N.Y. Aug. 17, 2020) (indicating that Help USA, a private
social services organization, is the operator of the Help Meyer
shelter). Defendant Estrada's actions cannot be considered
attributable to DHS or the City of New York, because she
is a private actor. Her employment by an organization that
operates a homeless shelter or receives funds from the City
of New York is not sufficient to turn her private conduct into
state action. Plaintiff therefore fails to state a Section 1983
claim against Defendant Estrada. See 28 U.S.C. § 1915(e)(2)
(B)(ii).
2. Claim against the City of New York
When a plaintiff sues a municipality under Section 1983,
it is not enough for the plaintiff to allege that one of
the municipality's employees or agents engaged in some
wrongdoing. The plaintiff must show that the municipality
itself caused the violation of the plaintiff's rights. See Connick
v. Thompson, 563 U.S. 51, 60 (2011) (“A municipality or
other local government may be liable under this section
[1983] if the governmental body itself ‘subjects’ a person to a
deprivation of rights or ‘causes’ a person ‘to be subjected’ to
such deprivation.” (quoting Monell v. Dep't of Soc. Servs. of
City of New York, 436 U.S. 658, 692 (1978))); Cash v. Cnty. of
Erie, 654 F.3d 324, 333 (2d Cir. 2011). In other words, to state
a Section 1983 claim against a municipality, the plaintiff must
allege facts showing (1) the existence of a municipal policy,
custom, or practice, and (2) that the policy, custom, or practice
caused the violation of the plaintiff's constitutional rights. See
Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012);
Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397,
403 (1997) (internal citations omitted).
Here, Plaintiff sues the City of New York, but he alleges
no facts suggesting that the City of New York itself has
a policy, practice, or custom that resulted in a violation of
his constitutional rights. Instead, the complaint outlines his
personal experience navigating the shelter system and what
he believes were violations committed by the shelter staff.
Plaintiff therefore fails to state a Section 1983 claim against
the City of New York. See 28 U.S.C. § 1915(e)(2)(B)(ii).
3. First Amendment retaliation
To state a First Amendment retaliation claim, a private citizen
must allege that “(1) he has an interest protected by the
First Amendment; (2) defendants' actions were motivated or
substantially caused by his exercise of that right; and (3)
defendants' actions effectively chilled the exercise of his First
Amendment right.” Curley v. Village of Suffern, 268 F.3d
65, 73 (2d Cir. 2001); see Williams v. Town of Greenburgh,
535 F.3d 71, 76 (2d Cir. 2008) (“Regardless of the factual
context, [courts] have required a plaintiff alleging retaliation
to establish speech protected by the First Amendment.”). The
plaintiff must also show, as with other Section 1983 claims,
that the defendants' actions were taken under color of state
law. See Sykes, 723 F.3d at 406 (internal citation omitted); see
also Ciambriello, 292 F.3d at 323.
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Because Plaintiff fails to identify any state-actor defendants
who allegedly retaliated against him, even if the Court
assumes that he is entitled to First Amendment protection for
his advocacy on issues relating to conditions at the shelter, that
the alleged retaliatory actions were caused by his exercise of
his rights, and that his exercise of his First Amendment rights
was effectively chilled, his complaint does not state a claim
that his constitutional rights were violated. Plaintiff does not
identify a state actor responsible for the allegedly retaliatory
conduct of the staff at the Help Meyer shelter and other
shelters. Instead, he brings claims only against Defendant
Estrada, who as explained above, cannot be considered a
state actor under Section 1983. Plaintiff's First Amendment
retaliation claims must therefore be dismissed for failure to
state a claim on which relief may be granted. See 28 U.S.C.
§ 1915(e)(2)(B)(ii).
4. Shelter conditions
*7 Any Section 1983 claims Plaintiff is asserting based
on shelter conditions must be dismissed because there is no
federal constitutional right to housing or accommodations in
a shelter system. In Lindsey v. Normet, the Supreme Court
held that there is no “constitutional guarantee of access to
dwellings of a particular quality.” 405 U.S. 56, 74 (1972).
Furthermore, the government has no “obligation to provide
adequate housing.” Richardson v. City of New York, No. 12-
CV-2545 (WHP), 2013 WL 2124176, at *2 (S.D.N.Y Apr.
17, 2012) (internal quotation marks and citation omitted).
Plaintiff's allegations about undesirable shelter conditions do
not state a federal claim because there is no due process
property right to placement in a particular type of shelter
under federal law or New York law. See Lindsey, 405 U.S.
at 74 (“We are unable to perceive in [the Constitution] any
constitutional guarantee of access to dwellings of a particular
quality ... [a]bsent constitutional mandate, the assurance
of adequate housing and the definition of landlord-tenant
relationships are legislative, not judicial, functions”); Jenkins
v. New York City Dep't of Homeless Servs., 643 F. Supp.
2d 507, 512 (S.D.N.Y 2009) (“The Plaintiff has no claim
for deprivation of property without due process because he
does not have a property right to placement in a particular
type of shelter under New York law.”). The Court therefore
dismisses Plaintiff's Section 1983 claims arising from his
shelter conditions for failure to state a claim on which relief
may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
C. Claims of Discrimination and Retaliation Based on
Disabilities
Plaintiff, who alleges that he suffers from mental and
physical disabilities, asserts that Defendants discriminated
and retaliated against him in violation of the Americans with
Disabilities Act (“ADA”), the Rehabilitation Act of 1973, and
the Fair Housing Act (“FHA”).
1. Claims under Title III of the ADA and the
Rehabilitation Act
Plaintiff alleges that Defendants discriminated and retaliated
against him in the provision of shelter services in violation
of the ADA and the Rehabilitation Act. Title III of the ADA
governs places of public accommodations, and guarantees
that “[n]o individual shall be discriminated against on the
basis of disability in the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by
any person who owns, leases (or leases to), or operates a place
of public accommodation.” 5 42 U.S.C. § 12182(a).
5 Although private shelters qualify as public
accommodations under Title III, see 42 U.S.C.
§ 12181(7)(K) (including homeless shelters and
“other social service center establishment[s]” as
public accommodations), the money damages
Plaintiff seeks are not available under Title III,
Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79,
86 (2d Cir. 2004), op. corrected, 511 F.3d 238 (2d
Cir. 2004).
Under the Rehabilitation Act, “no otherwise qualified
individual with a disability in the United States ... shall,
solely by reason of her or his disability, be excluded from
the participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving
Federal financial assistance ...” 29 U.S.C. § 794(a). There
is no individual liability under the Rehabilitation Act. See,
e.g., Davis v. Power of Auth., No. 19-CV-0792 (KMK), 2022
WL 309200, at *20 (S.D.N.Y. Feb. 2, 2022). Because the
standards under the ADA and the Rehabilitation Act “are
generally the same and the subtle distinctions between the
statutes are not implicated in this case, ‘[the Court will] treat
claims under the two statutes identically’ ” for the purposes
of this order. 6 Wright v. N.Y. State Dep't of Corrs., 831 F.3d
64, 72 (2d Cir. 2016) (quoting Henrietta D. v. Bloomberg, 331
F.3d 261, 272 (2d Cir. 2003)).
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Syville v. City of New York, Not Reported in Fed. Supp. (2023)
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6 Plaintiff does not allege that the shelters receive
federal funding, as would be required to state a
claim under the Rehabilitation Act. See 29 U.S.C. §
794(a); Rothschild v. Grottenthaler, 907 F.2d 286,
289-90 (2d Cir. 1990). The Court will, however,
assume for purposes of this decision that the
Rehabilitation Act applies to the shelters.
To state a disability discrimination claim under the ADA
and the Rehabilitation Act, a plaintiff must allege: (1) that
he is disabled within the meaning of the statute; (2) that
the defendants own, lease, or operate a place of public
accommodation; and (3) that the defendants discriminated
against the plaintiff within the meaning of the statute. Roberts
v. Royal Atl. Corp., 542 F.3d 363, 368 (2d Cir. 2008). A
plaintiff must also allege that the “exclusion or discrimination
was due to [the plaintiff's] disability.” Fulton v. Goord, 591
F.3d 37, 43 (2d Cir. 2009) (quoting Hargrave v. Vermont, 340
F.3d 27, 34-35 (2d Cir. 2003)). To state a claim for retaliation
under these statutes, a plaintiff must allege that (1) he was
engaged in an activity protected under the statutes, (2) the
defendants were aware of this activity, (3) the defendants
took adverse action against the plaintiff, and (4) a causal
connection exists between the protected activity and the
adverse action. See 42 U.S.C. § 12203 (prohibiting retaliation
against an individual who has “participated in any manner
in an investigation, proceeding, or hearing” under the ADA);
Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000)
(defining “protected activity” as “action taken to protest or
oppose statutorily prohibited discrimination”).
*8 Even if the Court assumes that Plaintiff is disabled
within the meaning of the ADA and Rehabilitation Act, his
assertions do not suggest that any defendant was motivated
by, or acted pursuant to, discriminatory or retaliatory animus
based on his disability, or that he requested and was denied
a reasonable accommodation. 7 Plaintiff asserts that he was
housed in the Help Meyer shelter and other facilities within
the shelter system, where: (1) he was denied medical care;
(2) staff and residents failed to follow protocols to reduce
the spread of Covid-19; (3) he was housed with undesirable
residents; (4) his case manager refused to make copies of
his papers; (5) his mail was mishandled; (6) his medication
and clothes were thrown away; and (7) Defendant Estrada
attempted to make him wait in the cold for transportation and
placed him in a hotel room with less than six feet between him
and a roommate. While these assertions suggest that Plaintiff
faced unfortunate conditions in the shelter system, he does
not allege facts suggesting that he was deprived of access to
services offered to other residents because of his disability
or perceived disability. For these reasons, Plaintiff's claims
under the ADA and the Rehabilitation Act are dismissed for
failure to state a claim on which relief may be granted. See 28
U.S.C. § 1915(e)(2)(B)(ii).
7 Generally, the proper defendant in a claim under
Title III of the ADA is the entity, not an individual
employee. As to individual liability under Title III
of the ADA, it has been held that “[t]he question
of whether a person is a proper defendant ...
turns ... on ... whether the [individual] defendant
owns, leases, or operates a place of public
accommodation within the meaning of the ADA.”
Doe v. NYSARC Trust Serv., Inc., No. 20-CV-0801,
2020 WL 5757478, at *5 (N.D.N.Y. Sept. 28, 2020)
(internal quotation marks and citation omitted),
report & recommendation adopted, 2020 WL
7040982 (N.D.N.Y. Dec. 1, 2020). With respect to
his disability based claims under Title III, Plaintiff
only names Defendant Estrada, who is not alleged
to be the owner or operator of the shelter.
Nor does Plaintiff name any entity as a defendant
that can be held liable under the Rehabilitation Act.
2. Claims under the FHA
The FHA, 42 U.S.C. § 3601, et seq., “broadly prohibits
discrimination in housing.” Gladstone Realtors v. Vill. of
Bellwood, 441 U.S. 91, 93 (1979). To state a claim under
the FHA, a plaintiff must plausibly allege that: (1) he was a
member of a class protected by the FHA, and (2) he suffered
an adverse housing action because of his membership in that
protected class. See Mazzocchi v. Windsor Owners Corp., No.
11-CV-7913 (LBS), 2012 WL 3288240, at *7 (S.D.N.Y. Aug.
6, 2012).
Here, Plaintiff asserts that Defendants subjected him to
discrimination in housing based on his disabilities, but he
does not allege any facts suggesting a violation of the FHA.
Although he repeatedly asserts that he complained about the
general conditions of the shelters, none of his allegations
suggests that his complaints involved discrimination based
on a disability. See, e.g., Williams v. New York City Hous.
Auth., No. 07-CV-7587 (RJS), 2009 WL 804137, at *8
(S.D.N.Y. Mar. 26, 2009) (complaints of general conditions
at housing complex are not “protected activities” under
the FHA). Because Plaintiff does not allege any facts
plausibly suggesting that any defendants subjected him to
discrimination or retaliation in housing on the basis of any
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impermissible factor, he fails to state a claim under the FHA.
The Court therefore dismisses Plaintiff's claims under the
FHA for failure to state a claim on which relief may be
granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
D. HIPAA Claims
Plaintiff alleges that Defendants violated his rights under
“HIPPA,” which the Court understands to be a reference to the
Health Insurance Portability and Accountability Act of 1996
(HIPAA). The Court must dismiss Plaintiff's claims under
HIPAA because HIPAA does not provide a private right of
action. See Meadows v. United Servs., Inc., 963 F.3d 240,
244 (2d Cir. 2020). The Court therefore dismisses Plaintiff's
claims under HIPAA for failure to state a claim on which relief
may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
E. Claims under State Law
A district court may decline to exercise supplemental
jurisdiction over state-law claims when it “has dismissed all
claims over which it has original jurisdiction.” 28 U.S.C.
§ 1367(c)(3). Generally, “when the federal-law claims have
dropped out of the lawsuit in its early stages and only
state-law claims remain, the federal court should decline the
exercise of jurisdiction.” (Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 350 n.7 (1988)). Having dismissed the federal
claims over which the Court has original jurisdiction, the
Court declines to exercise its supplemental jurisdiction over
any state-law claims Plaintiff may be asserting. 8 See Kolari
v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.
2006) (“Subsection (c) of § 1367 ‘confirms the discretionary
nature of supplemental jurisdiction by enumerating the
circumstances in which district courts can refuse its exercise.’
”) (quoting City of Chicago v. Int'l Coll. of Surgeons, 522 U.S.
156, 173 (1997)).
8 By invoking the “Human Rights Act” and the
“Covid-19 Act” (ECF 6, at 2), Plaintiff may be
attempting to assert claims under the New York
State and City Human Rights Laws and other state
laws.
CONCLUSION
*9 The Court dismisses this action for failure to state a claim
on which relief may be granted. See 28 U.S.C. § 1915(e)(2)
(B)(ii). All other pending matters in this case are terminated.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith, and
therefore in forma pauperis status is denied for the purpose
of an appeal. Cf. Coppedge v. United States, 369 U.S. 438,
444-45 (1962) (holding that an appellant demonstrates good
faith when he seeks review of a nonfrivolous issue).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 8258020
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Lagueux v. Bridgeport Hosp. School of Nursing, Not Reported in F.Supp.2d (2013)
2013 WL 1310557
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2013 WL 1310557
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Michael J. LAGUEUX, Plaintiff,
v.
BRIDGEPORT HOSPITAL SCHOOL
OF NURSING, et al., Defendants.
No. 3:11CV01933 (DJS).
|
March 27, 2013.
Attorneys and Law Firms
Michael J. Lagueux, Waterbury, CT, pro se.
Michael N. Lavelle, Rachel L. Ginsburg, Pullman & Comley,
Bridgeport, CT, for Defendants.
RULING ON MOTIONS TO DISMISS
DOMINIC J. SQUATRITO, District Judge.
*1 The pro se plaintiff, Michael J. Lagueux, filed this
action against the defendants, Bridgeport Hospital School of
Nursing, Bridgeport Hospital, and Griffin Hospital, alleging
violations of Title IX of the Education Amendments Act of
1972, Title VII of the Civil Rights Act of 1964, the Equal
Educational Opportunities Act of 1974, and the Fourteenth
Amendment of the United States Constitution. The plaintiff
claims that the defendants discriminated against him on the
basis of his gender. Currently pending before the Court are a
motion to dismiss filed by the defendant Griffin Hospital and
a partial motion to dismiss filed by the defendant Bridgeport
Hospital. Both motions were filed pursuant to Fed.R.Civ.P.
12(b)(6). For the reasons stated below, Griffin Hospital's
motion to dismiss (doc. # 13) is granted and Bridgeport
Hospital's partial motion to dismiss (doc. # 12) is granted in
part and denied in part.
I. STANDARD
In considering a motion to dismiss filed pursuant to
Fed.R.Civ.P. 12(b)(6), the district court must “consider
the legal sufficiency of the complaint, taking its factual
allegations to be true and drawing all reasonable inferences
in the plaintiff's favor.” Harris v. Mills, 572 F.3d 66, 71
(2d Cir.2009). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “ ‘A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Turkmen v.
Ashcroft, 589 F.3d 542, 546 (2d Cir.2009) (quoting Iqbal, 556
U.S. at 678).
“In accordance with the Supreme Court's decision Bell
Atlantic Corp. v. Twombly, ... we apply a plausibility standard,
which is guided by [t]wo working principles. First, although
a court must accept as true all of the allegations contained
in a complaint, that tenet is inapplicable to legal conclusions
and [t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.
Second, only a complaint that states a plausible claim for
relief survives a motion to dismiss and [d]etermining whether
a complaint states a plausible claim for relief will ... be
a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense. Even
after Twombly, though, we remain obligated to construe a pro
se complaint liberally.' Harris, 572 F.3d at 71–72 (internal
quotation marks and citations omitted).
II. FACTS
The following facts are gleaned from the plaintiff's complaint.
The plaintiff was a male nursing student at the Bridgeport
Hospital School of Nursing during the fall of 2008. The
plaintiff successfully completed his initial course, Nursing
101, which included a clinical component within Bridgeport
Hospital. He subsequently requested a different clinical
instructor for his next course, Nursing 102. In a written
complaint to the Bridgeport Hospital School of Nursing, the
plaintiff stated that he had “noticed a pattern of behavior,
which has progressively had the impact of interfering with
my pursuit of education at Bridgeport Hospital School of
Nursing.” (Doc. 1, at 6). According to the plaintiff, this
behavior included remarks made by his female clinical
instructor about male nurses and nursing students, e.g., “Men
have it easier in Nursing.” (Id.). The day after he submitted
his written complaint, the plaintiff told the Coordinator of the
Bridgeport Hospital School of Nursing that he felt he was
being singled out because he was male.
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*2 The plaintiff thereafter withdrew his request to be
reassigned to a different clinical instructor but was reassigned
nonetheless. His Nursing 102 clinical instruction was to take
place under the direction of a different Bridgeport Hospital
School of Nursing instructor and would take place at Griffin
Hospital 1 . The plaintiff was not provided with a proper or
timely orientation to his new clinical setting, and, as a result,
was denied access to a mandatory clinical session and written
up as “absent” from the session. The plaintiff received an
unsatisfactory grade for the clinical component of Nursing
102, but this determination was made on the basis of standards
applicable to Nursing 104, rather than the standards that
applied to Nursing 102. The plaintiff was then terminated
from the nursing program. His subsequent application for
readmission to the Bridgeport Hospital School of Nursing was
denied in 2009.
1 Clinical instruction of Bridgeport Hospital School
of Nursing students was provided at both
Bridgeport Hospital and Griffin Hospital.
III. DISCUSSION
A. The Defendant Griffin Hospital
The defendant Griffin Hospital has moved to dismiss all
claims against it for the reason that the complaint fails to
state a claim against it upon which relief can be granted.
In response, the plaintiff contends that his complaint states
“multiple claims [against Griffin Hospital] upon which relief
can be granted.” (Doc. # 17, at 1). After carefully reviewing
the complaint in its entirety, the Court concludes that the
complaint fails to state a claim against the defendant Griffin
Hospital upon which relief can be granted.
In essence, the plaintiff claims that adverse actions were taken
against him after he had complained to officials within the
Bridgeport Hospital School of Nursing that he was being
singled out for different treatment as a nursing student on the
basis of his gender. According to the plaintiff, these actions
included “denying his request not to be transferred [to a
different clinical instructor],” “plac[ing] him in a position to
fail because they failed to grant him an opportunity to be
orientated to a new clinical setting,” and “allow[ing] him to
be denied access to a clinical session and be written up as
absent when he showed up to clinical as prepared as can
be reasonably expected under the ... circumstances....” (Doc.
# 1, at 19). All of these claimed adverse actions were
taken by one or more officials, employees, or agents of “the
School,” i.e., the Bridgeport Hospital School of Nursing.
The complaint contains no factual allegation relating to any
official, employee, or agent of the Griffin Hospital concerning
any of these actions.
With regard to the defendant Griffin Hospital, the complaint
alleges that the plaintiff made the following request of the
Griffin Hospital Human Resources department on January 8,
2009: “I ask that you review the following documentation
to see if it coincides with the core values & behaviors
of Griffin Hospital.” (Id. at 37). Immediately following
this language in the complaint is a reference to “[d]enial
of re-instatement by Senior Vice President of Patient
Care Operations on 1/16/2009 by BHSN School/Bridgeport
Hospital, including written admission of failure to provide
clinical supervision in timely fashion by Clinical Instructor
II in violation of Connecticut Statutes regarding Medication
Administration.” (Id. at 38). It is not clear what “the following
documentation” mentioned in the plaintiff's January 8, 2009
request might be, especially since the denial of reinstatement
mentioned immediately after that reference was stated as
occurring on January 16, 2009, which would have been
eight days after the date of the request. In any case, the
plaintiff's allegations that he requested a review of certain
documentation and that Griffin Hospital failed to conduct
such a review do not constitute sufficient factual matter to
state a claim to relief that is plausible on its face as to any of
the legal bases identified by the plaintiff in his complaint.
*3 The Court agrees with the defendant that the complaint
contains no facts that would support a claim of denial of rights
or retaliation by Griffin Hospital. Since the complaint fails to
state a claim upon which relief can be granted against Griffin
Hospital, all claims against the defendant Griffin Hospital are
dismissed.
B. Title VII
The plaintiff's complaint includes a claim based on Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, et seq (Title VII). Title VII provides in part that
“[i]t shall be an unlawful employment practice for an
employer ... to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's ... sex....” 42
U.S.C. § 2000e–2(a). The Second Circuit has determined
that for purposes of Title VII “compensation ... is an
essential condition to the existence of an employer-employee
relationship.” O'Connor v. Davis, 126 F.3d 112, 116 (2d
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Cir.1997) (internal quotation marks omitted). In O'Connor
the court found that a student performing an internship at
a hospital was not an employee of the hospital, and, for
that reason, could not maintain a Title VII claim against the
hospital. Id. See also Hajjar–Nejad v. George Washington
University, 873 F.Supp.2d 1, 14 (D.D.C.2012)(a plaintiff who
alleged he was improperly dismissed from medical school
could not “invoke the protections of Title VII” because he was
a student and not an employee of the defendant university).
In response to the defendants' contention that the plaintiff,
who identifies himself in the complaint as a nursing student,
was neither an employee nor an applicant for employment
at either of the defendant hospitals, the plaintiff argues that
“through no fault of his own he was elevated to the status
of employee from nursing student then terminated for not
following regulations that apply to a licensed employee
not a nursing student, and therefore must be protected by
employment law such as Title VII....” (Doc. # 18, at 3). As
was previously noted, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’
“ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
Court finds that the plaintiff's complaint clearly identifies him
as a nursing student and not an employee of either of the
two defendant hospitals. Consequently, the complaint does
not state a claim to relief pursuant to Title VII that is plausible
on its face. The plaintiff's claims based on Title VII are
dismissed.
C. Equal Educational Opportunities Act of 1974
The plaintiff has also raised a claim based on the Equal
Educational Opportunities Act of 1974, 20 U.S.C. § 1701, et
seq. (the EEOA). The EEOA expressly declares the policy
of the United States to be that “all children enrolled in
public schools are entitled to equal educational opportunity
without regard to race, color, sex, or national origin....” 20
U.S.C. § 1701(a). As noted by the defendants, there are
no facts in the complaint which could support a claim that
the plaintiff was enrolled in a public school at the time
he was a nursing student. In fact, he was enrolled as a
nursing student at a private institution which, according to
the plaintiff, is “a corporation incorporated under the laws of
Connecticut....” (Doc. # 1, at 1). As a result, the complaint
does not state a claim to relief pursuant to the EEOA that is
plausible on its face. See Khan v. Educational Commission for
Foreign Medical Graduates, No. CIV.A. 00–1701, 2000 WL
1763671, at *1 (E.D.Pa. Nov. 30, 2000) (the plaintiff could not
maintain an EEOA claim on the basis of a complaint that did
not indicate he was enrolled in a public school). The plaintiff's
claims based on the EEOA are dismissed.
D. Fourteenth Amendment
*4 The plaintiff's complaint invokes “[t]he Fourteenth
Amendment of the Constitution.” 2 (Doc. # 1, at 2). The
complaint also states that each of the defendants “is a
corporation incorporated under the laws of Connecticut and
having a main office at [a stated address in] Connecticut.” (Id.
at 1).
2 A properly plead Fourteenth Amendment claim
could be raised pursuant to 42 U.S.C. § 1983:
“Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State ... subjects, or causes to be subjected, any
citizen of the United States ... to the deprivation of
any rights, privileges, or immunities secured by the
Constitution ... shall be liable to the party injured
in an action at law....”
The Fourteenth Amendment “applies only to state action,”
and “ ‘offers no shield’ against private conduct, ‘however
discriminatory or wrongful.’ “ Cooper v. United States Postal
Service, 577 F.3d 479, 491 (2d Cir.2009) (quoting Jackson
v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974)). In
order to maintain a claim under the Fourteenth Amendment
against any of the defendants, the complaint would have to
contain sufficient factual matter to state a plausible claim that
action taken by such defendant(s) constituted state action.
Although the complaint contains references to federal funding
received by one or more of the defendants, such funding does
not demonstrate that those defendants were state actors. See
Schneider v. Arc of Montgomery County, 497 F.Supp.2d 651,
654 (E.D.Pa.2007) (Non-profit corporations' receipt of public
funds did not establish that they were state actors for purposes
of 42 U.S.C. § 1983). Nor would the fact that the defendants
were subject to state regulation demonstrate that their actions
were those of the state. See Purgess v. Sharrock, 806 F.Supp.
1102, 1111 (S.D.N.Y.1992) (“Even if the state does regulate
hospitals, such regulation does not establish the requisite state
action [for purposes of a constitutional claim pursuant to 42
U.S.C. § 1983].”)
The complaint does not state a claim to relief pursuant to
the Fourteenth Amendment that is plausible on its face. The
plaintiff's claims based on the Fourteenth Amendment are
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Lagueux v. Bridgeport Hosp. School of Nursing, Not Reported in F.Supp.2d (2013)
2013 WL 1310557
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dismissed. E. The Defendant Bridgeport Hospital School of
Nursing
The defendant Bridgeport Hospital has moved to dismiss all
claims against the Bridgeport Hospital School of Nursing
for the reason that the School of Nursing is a department
of Bridgeport Hospital and not a separate legal entity.
The defendant attached an affidavit from the Director of
Bridgeport Hospital School of Nursing in support of this
contention.
The motion to dismiss filed by the defendant Bridgeport
Hospital explicitly states that it is brought “[p]ursuant to
Federal Rule of Civil Procedure 12(b)(6)....” (Doc. # 12,
at 1). “Consideration of extraneous material in judging the
sufficiency of a complaint [for purposes of a Rule 12(b)
(6) motion] is at odds with the liberal pleading standard
of Federal Rule of Civil Procedure 8(a)(2)....” Chambers v.
Time Warner, Inc., 282 F.3d 147, 154 (2d Cir.2002). “[A]
plaintiff's reliance on the terms and effect of a document in
drafting the complaint is a necessary prerequisite to the court's
consideration of the document on a dismissal motion....” Id.
at 153.
Here the plaintiff has alleged in his complaint that
the “Defendant Bridgeport Hospital School of Nursing
is a corporation incorporated under the laws of
Connecticut....” (Doc. # 1, at 1). Under these circumstances,
the Court may not consider the affidavit attached to the
defendant Bridgeport Hospital's motion to dismiss without
converting the motion to one for summary judgment. See
Fed.R.Civ.P. 12(d) (“If, on a motion under Rule 12(b)(6)
... matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one
for summary judgment under Rule 56.”). The Court elects
to exclude the affidavit rather than convert the defendant's
motion to one for summary judgment. The Court sees no
prejudice to the defendants in this approach, since the same
issue can properly be considered in connection with the
defendants' motion for summary judgment. The defendant's
motion to dismiss all claims against the defendant Bridgeport
Hospital School of Nursing is denied.
IV. CONCLUSION
*5 For the foregoing reasons, the motion to dismiss filed by
the defendant Griffin Hospital (doc.# 13) is GRANTED and
the partial motion to dismiss filed by the defendant Bridgeport
Hospital (doc.# 12) is GRANTED in part and DENIED in
part.
All claims against the defendant Griffin Hospital are
dismissed.
The Title VII, Equal Educational Opportunities Act, and
Fourteenth Amendment claims against the defendants
Bridgeport Hospital and Bridgeport Hospital School of
Nursing are dismissed.
This case will proceed only as to the Title IX claims against
the defendants Bridgeport Hospital and Bridgeport Hospital
School of Nursing.
So ORDERED.
All Citations
Not Reported in F.Supp.2d, 2013 WL 1310557
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-01789-BKS-CBF Document 6 Filed 04/17/26 Page 47 of 138

Rule v. Braiman, Not Reported in Fed. Supp. (2024)
2024 WL 4042135
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 4042135
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Tara RULE, Plaintiff,
v.
Jonathan BRAIMAN, Donna Kirker, Lisa West,
Christine Calistri (Towers), Albany Med Health
Partners (Systems), Glens Falls Hospital, Saratoga
Hospital, Malta Med Emergent Care, Defendants.
1:23-cv-01218 (BKS/CFH)
|
Signed September 4, 2024
Editor's Note: This decision contains discussion of citation
references that are incorrect or do not actually exist. These
invalid citations appeared in the original court opinion and
have been preserved as written since they are part of the
official record. Any links to these invalid citations have been
removed.
Attorneys and Law Firms
Plaintiff Pro Se: Tara Rule, Round Lake, New York 12151.
For Defendant Jonathan Braiman: Michael J. Murphy,
Barclay Damon LLP, 80 State Street, Albany, New York
12207.
For Defendants Lisa West and Christine Calistri: Karen A.
Butler, Maynard, O'Connor, Smith & Catalinotto, LLP, 6
Tower Place, Albany, New York 12203.
For Defendants Albany Med Health System, Glens Falls
Hospital, Saratoga Hospital, Healthcare Partners of Saratoga
Ltd. (dba Malta Med Emergent Care), and Donna Kirker:
Michael D. Billok, Rebecca J. LaPoint, Bond, Schoeneck &
King, PLLC, 268 Broadway, Suite 104, Saratoga Springs,
New York 12866.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, Chief United States District Judge:
I. INTRODUCTION
*1 This action stems from Plaintiff pro se Tara Rule's
September 14, 2022 appointment with Defendant Dr.
Jonathan Braiman in the neurology department of Glens Falls
Hospital and September 21, 2022 visit to Defendant Malta
Med Emergent Care (“Malta Med”). (Dkt. No. 45). Plaintiff
brings this action against Defendants Dr. Braiman, Donna
Kirker, Lisa West, Christine Calistri, 1 Albany Med Health
Partners (“Albany Med”), Glens Falls Hospital, Saratoga
Hospital, and Malta Med Emergent Care (“Malta Med”),
and alleges: (1) sex, age, and disability discrimination
and retaliation in violation of the Patient Protection and
Affordable Care Act (“ACA”), 124 Stat. 260, 42 U.S.C.
§ 18116 (First Cause of Action); (2) denial of a public
accommodation, in violation of Title II of the Civil Rights
Act (Second Cause of Action); (3) age discrimination in
violation of the Age Discrimination Act of 1975, 42 U.S.C.
§§ 6101–6107 (Third Cause of Action); (4) a violation of
the Patient Self-Determination Act, 42 U.S.C. § 1395cc(f)
(Fourth Cause of Action); (5) false statements relating
to health care, in violation of 18 U.S.C. § 1035 (Fifth
Cause of Action); (6) a violation of the Health Insurance
Portability and Accountability Act of 1996 (“HIPAA”),
42 U.S.C. § 1320d et seq. (Sixth Cause of Action); (7)
violations of 18 U.S.C. §§ 371, 241, 242, and violations
of the First and Fourteenth Amendments under 42 U.S.C.
§ 1983 (Seventh Cause of Action); (8) a violation of the
Emergency Medical Treatment and Labor Act (“EMTALA”),
42 U.S.C. § 1395dd (Eighth Cause of Action); (9) health
care fraud, in violation of 18 U.S.C. § 1347 (Ninth Cause
of Action); (10) disability discrimination, in violation of
the Americans with Disabilities Act (“ADA”), 42 U.S.C. §
12101 (Tenth Cause of Action); (11) negligence (Eleventh
Cause of Action); (12) negligence per se (Twelfth Cause
of Action); (13) malpractice (Thirteenth Cause of Action);
(14) intentional infliction of emotional distress (Fourteenth
Cause of Action); (15) invasion of privacy (Fifteenth Cause
of Action); (16) harassment (Sixteenth Cause of Action); and
(17) negligent infliction of emotional distress (Seventeenth
Cause of Action). (Dkt. No. 45). Presently before the Court
are Defendants’ motions to dismiss the Amended Complaint
under Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim. (Dkt. Nos. 63, 66, 68). Plaintiff opposes
Defendants’ motions. (Dkt. Nos. 74, 75, 76). The motions
are fully briefed. (Dkt. Nos. 77, 78, 81, 86, 87, 88). For the
reasons that follow, Defendants’ motions are granted in part
and denied in part.
1 The caption of the Amended Complaint names
Calistri as “Christine Calistri (Towers).” (Dkt. No.
45, at 1). As she refers to herself as “Christine
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Calistri” in her submissions, (see Dkt. No. 63-5, at
1), the Court does likewise.
II. FACTS 2
2 The facts are drawn from the Amended Complaint
and the attached exhibits. The Court assumes the
truth of, and draws reasonable inferences from, the
well-pleaded factual allegations, see Lynch v. City
of New York, 952 F.3d 67, 74–75 (2d Cir. 2020),
but does not accept as true the legal conclusions,
see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009). The Court declines
to consider the exhibits Defendants have filed in
support of their motions to dismiss. See Palin v.
New York Times Co., 940 F.3d 804, 810–11 (2d Cir.
2019) (explaining that when matters outside the
pleadings are presented and are not “integral” to the
complaint or subject to judicial notice, Rule 12(d)
“presents district courts with only two options: (1)
‘the court may exclude the additional material and
decide the motion on the complaint alone’ or (2)
‘it may convert the motion to one for summary
judgment under Fed. R. Civ. P. 56 and afford
all parties the opportunity to present supporting
material’ ” (quoting Fed. R. Civ. P. 12(d))).
A. Parties
*2 Plaintiff is a 32-year-old woman who “suffers from a
disabling genetic disorder called Ehlers Danlos Syndrome
(EDs) (hypermobile subtype) which causes severe pain and
medical complications.” (Dkt. No. 45, ¶¶ 1, 42).
Albany Med, Glens Falls Hospital, and Saratoga Hospital
are “voluntary non-profit private hospital[s] that receive[ ]
federal funding and accept[ ] federal Medicare and state
Medicaid” located, respectively, in Albany, Glens Falls, and
Saratoga Springs, New York. (Dkt. No. 45, ¶¶ 4–6). Albany
Med owns Glens Falls Hospital, Saratoga Hospital, and Malta
Med. (Id. ¶¶ 3, 7, 9).
As to the individual Defendants, Dr. Jonathan Braiman,
is a neurologist in the Department of Neurology at Glens
Falls Hospital. (Id. ¶ 2). Donna Kirker, MS, RN, NEA-
BC, Dr. [ ] Braiman's superior [and] is the Sr. Vice
President/Patient Services and Chief of Nursing at Glens Falls
Hospital.” (Id. ¶ 5). “Lisa West is the Administrative Director
of Emergency Services” and “Chief Nursing Officer” at
Saratoga Hospital.” (Id. ¶¶ 6, 83). Christine Calistri “is a nurse
practitioner employed by Malta Med.” (Id. ¶ 8).
B. September 14, 2022 – Neurologist Jonathan
Braiman, M.D.
On or about September 14, 2022, Plaintiff was seen by
Dr. Braiman for a “comorbid condition to EDS known as
cluster headaches.” (Id. ¶¶ 2, 42–43, 45). Plaintiff and Dr.
Braiman “discussed in detail current medications, medication
allergies, past failed treatments for cluster headaches, EDS,
and comorbid conditions.” (Id. ¶ 46). “Dr. Braiman informed
the Plaintiff that safe, effective treatments were available
for cluster headaches, however he could not prescribe them
to the Plaintiff, claiming that her health insurance company
would not cover any treatments that ... have the potential
to cause birth defects.” (Id. ¶ 47). Plaintiff responded that
her insurance company fully covered ... the treatment her
rheumatologist had prescribed for her autoimmune condition,
including Cellcept, Mycophenolate, and Motefil, “and that
these treatments” could cause birth defects. (Id. ¶ 48). As
Dr. Braiman “looked up the side effects Cellcept can have
on a fetus and read them aloud,” Plaintiff began recording. 3
(Id. ¶ 51). Dr. Braiman asked Plaintiff what she would do
in the event of a pregnancy and Plaintiff responded that
“she would have to get an abortion.” (Id. ¶ 52). Plaintiff
explained that her genetic doctor told her that pregnancy
carried a high risk of complications, that there was a “high
likelihood of passing the disorder onto offspring,” and that
it was impossible to test a fetus for EDS. (Id. ¶ 52). Dr.
Braiman responded that there were “scans and tests” for
birth defects, “but its trickier now with the way things are
going” and that Plaintiff “should ‘think deeply’ ... about her
current medication regimen ... due to its potential for birth
defects, as well as her decision to terminate a non-consensual
pregnancy.” (Id. ¶¶ 54–55). Dr. Braiman also told Plaintiff
that “she would need to bring her (male) partner in on the
conversation regarding her medical care and treatment.” (Id. ¶
56). Plaintiff stated that “her partner had a vasectomy and that
pregnancy wasn't a concern.” (Id. ¶ 57). When Plaintiff asked
Dr. Braiman whether the “treatments he was unwilling to
prescribe would be safe and effective for those who have gone
through menopause and hence were no longer of childbearing
age,” he replied “Yeah, they would be.” (Id. ¶ 58). When
Plaintiff then asked Dr. Braiman whether “the only reason” he
would not prescribe Plaintiff “these treatments” was because
she “could get pregnant?” Dr. Braiman asked about her sleep.
(Id. ¶ 58). “Dr. Braiman ... refused to tell the Plaintiff the
names, risks, and benefits of all available treatments.” (Id. ¶
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59). “Dr. Braiman suggested a number of off-label treatments
that, as the Plaintiff had already discussed with Dr. Braiman,
she had already tried and failed.” (Id. ¶ 61). “Dr. Braiman
informed the Plaintiff that he would not be willing to prescribe
any medication to her that had the potential to cause birth
defects.” (Id. ¶ 66).
3 Plaintiff has submitted the recording as Exhibit U
to the Amended Complaint. (Dkt. No. 45, ¶ 51).
*3 “On September 15, 2022, Plaintiff made a formal
complaint to the Glens Falls Hospital Patient Relations.” (Id.
¶ 72). Plaintiff does not detail the content of her “formal
complaint.” 4
4 In a letter to Plaintiff dated November 18, 2022,
Sean Bain, MD, Glen Falls Vice President and
Chief Medical Officer responded: “I understand
your experience with our hospital has caused you
great concern. It is always our goal to ensure
patients are treated with dignity, respect and
compassion, and I am sorry that we fell short
of your expectations.” (Dkt. No. 45, at 110). Dr.
Bain stated that Glens Falls Hospital reviewed
and investigated Plaintiff's “concerns,” and that he
reviewed Plaintiff's medical record and “spoke with
the provider involved,” and that:
It was determined that the clinical decisions
of the provider were appropriate. It is standard
of care to inform patients of contraindications
and side effects of specific medications ... and
it is within a provider's discretion to make
prescription decisions based on this information.
However, the provider does acknowledge that
there were opportunities for a more sensitive and
empathetic conversation.
(Id.). Dr. Bain advised Plaintiff of her right
to contact the New York State Department of
Health or to submit a complaint to “DNV GL
Healthcare.” (Id.).
On or about September 22, 2022, Dr. Braiman sent a Aimovig,
a medication, to “Plaintiff's pharmacy without her consent or
discussing the risks and benefits of the medication.” (Id. ¶ 62).
Plaintiff returned the Aimovig to the pharmacy after reading
the warnings and side effects, which included “serious injury
or death.” (Id. ¶ 65).
C. September 21, 2022 – Malta Med Emergent Care
On September 21, 2022, Plaintiff was experiencing
“complications due to the untreated cluster headaches and
went to the emergency department at Malta Med Emergent
Care.” (Dkt. No. 45, ¶ 73). Plaintiff's “vitals ... were
dangerously out of range due to the pain of the untreated
condition” and she arrived at the emergency department
“crying, sweating, shaking,” with “heightened blood pressure
and pulse due to the pain.” (Id. ¶ 73–74). Plaintiff was
seen by Defendant Christine Calistri, a nurse practitioner.
(Id. ¶ 75). Plaintiff received “one round of non-narcotic
migraine cocktail and oxygen therapy, which did not stabilize
her condition.” (Id. ¶ 76). Calistri “ordered additional IV
medications ... as soon as Plaintiff's initial IV bag was
finished.” (Id. ¶ 77). A nurse “informed Plaintiff that she was
being discharged from Malta Med Emergent Care without
transfer because Glens Falls Hospital called them and told
them to discharge Plaintiff for “live streaming.” (Id. ¶ 78).
When Plaintiff asked for “additional information,” The nurse
stated “she was not sure” and would send in Calistri. (Id. ¶
79). “Plaintiff began recording on her cell phone.” (Id. ¶ 80).
Calistri and the nurse returned to Plaintiff's room and
“[a]rmed security guards walked over to the Plaintiff's room
and stood outside the door in the hallway.” (Id. ¶¶ 81–82).
Calistri told Plaintiff that Kirker, at Glens Falls Hospital, had
called Defendant Lisa West, at Saratoga Hospital, who called
the Malta Med “Emergency Department Director,” who
called the Malta Med “Emergency Care Charge Nurse” to
say that Plaintiff “was live streaming.” 5 (Id. ¶ 83). “Plaintiff
was not live streaming and denied the allegations.” (Id.
¶ 84). When Plaintiff asked “how anyone from another
hospital system would know that she was in the emergency
department,” Calistri said “[t]hey looked you up on the
tracker” and “gave your room number” and the nurse added
that “[w]e searched your name.” (Id. ¶¶ 85–86). Calistri
told Plaintiff “that live streaming in the hospital was ‘100%
illegal.’ ” 6 (Id. ¶ 87). Plaintiff continued to deny live
streaming and Calistri told Plaintiff: “I don't know what you
did, and I don't really care because you're lying (about live
streaming)” “[y]ou can take it up with security and our legal
department.” (Id. ¶¶ 89–90).
5 “Malta Med Emergent Care's audit trail noted
that Defendant Lisa West had called Malta Med
Emergent Care and spoke to the Charge Nurse and
the Defendant Christine Calistri and provided the
Plaintiff's room number as well as instructions to
ask the Plaintiff to, ‘stop live streaming or to be
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escorted off premises.’ ” (Dkt. No. 45, ¶ 91; see
also Dkt. No. 45, at 115 (nurse notes stating “Lisa
West called in regards to a patient live streaming in
our facility gave the patients [sic] name and room
number. Writer was informed that Lisa got a call
from Glens Falls who calledand [sic] Saratoga who
told her the patient was live streaming was inform
[sic] to encourage patient to stop live streaming or
to be escorted off premises”)).
6 Neither Malta nor Albany Med had “policies
regarding social media use on September 21,
2022.” (Dkt. No. 45. ¶ 84).
*4 The “additional treatment ordered while Plaintiff was
in the emergency room on September 21, 2022 were [sic]
canceled immediately following the call from Defendant Lisa
West, and ... this action was signed off on by” Calistri. (Id.
¶ 104). Medical records from September 21, 2022 state that
after the first “migraine cocktail” of Reglan, Toradol, and
Benadryl, Plaintiff reported “minimal improvement” and was
given additional Toradol, and that “[a]fter another hour and
half [Plaintiff] reported improvement” from an 8 to a “6 out
of 10” and stated “this is typical and she at this point would
like to be discharged.” (Id. at 128). Plaintiff claims this was
“false and contradicted notes input to the hospital's pharmacy
for additional treatment.” (Dkt. No. 45, ¶ 105 (citing Dkt. No.
45, at 124)). 7 “At the time Plaintiff was being asked to leave
the premises, Plaintiff was not stabilized and records indicate
her blood pressure and pulse were still abnormally high.” (Id.
¶ 93) (citing Dkt. No. 45, at 111 (vital signs noted at 4:39 p.m.,
pulse 90 and blood pressure 140/81)).
7 The “pharmacy” “notes” that Plaintiff refers to
do not necessarily show a “contradiction.” These
“notes” are a “Discharge Report” containing an
“Audit Trail of Events,” and show little more than
an “Order” for Benadryl at 1:50 p.m. by Calistri and
“Discontinue in PHA” by “Scheduler” at 1:51 p.m.,
and an “Order” for Toradol by Calistri at 3:11 p.m.
and “Discontinue in PHA” by “Scheduler” at 3:12
p.m. (Dkt. No. 45, at 124). There are similar “Audit
Trails” for earlier orders of Toradol and Reglan. (Id.
at 125).
D. “Forged” Insurance Documents
Plaintiff was billed “for services that were never provided”
at Malta Med as well as “additional treatment that had
been ordered and subsequently canceled.” 8 (Dkt. No. 45,
¶ 107) (citing Dkt. No. 45, at 132 (bill from Malta Med
for September 21, 2022 care)). Plaintiff's insurance company
“denied the claim due to a lack of consent forms signed by
the Plaintiff.” (Id. ¶ 108). A “Patient Signature Page” listing
the medications Plaintiff received, advises the patient to read
through before signing and states “I have read and understand
the instructions given to me by my caregivers.” (Dkt. No.
45, at 134). “Verbalized” is written on the patient signature
line, and dated “9/28/22” at 6:00 p.m. (Id.). Plaintiff did not
authorize “[t]he consent documents” and they were “signed
off by a provider whose name does not appear to be listed
anywhere within the Albany Med Health System.” (Dkt. No.
45, ¶ 112).
8 Plaintiff alleges that “[i]nsurance documents ...
show that Christine Calistri” attempted to bill
Plaintiff for these services and medications. (Dkt.
No. 45, ¶ 107). However, as the documents Plaintiff
attached as exhibits reflect that the bill was from
Malta Med and contain no indication that Calistri
was responsible for billing, (Dkt. No. 45, at 132),
the Court need not accept Plaintiff's allegations
as true. See Blau v. Allianz Life Ins. Co. of N.
Am., 124 F. Supp. 3d 161, 176 n. 7 (E.D.N.Y.
2015) (“[W]here ‘the allegations of a complaint are
contradicted by documents made a part thereof, the
document controls and the court need not accept
as true the allegations of the complaint.”) (quoting
Barnum v. Millbrook Care Ltd. P'ship, 850 F. Supp.
1227, 1232–33 (S.D.N.Y. 1994)).
E. Google Review and Facebook Messages
On September 21, 2022, Plaintiff's “boyfriend left a negative
Google review of the facility wherein he did not mention the
plaintiffs [sic] name or any identifying information.” 9 (Dkt.
No. 45, ¶ 95). On September 30, 2022, Plaintiff's boyfriend
“received a Facebook message” from Calistri disclosing
“Plaintiff's private health information.” (Id. ¶ 96); see also
Dkt. No. 45, at 120 (message from Calistri stating “Do
you understand I was given orders by my administration to
confront Tara about posting a video? I knew nothing about
her history with her care in Glens Falls .... As Tara's nurse
practitioner, I did everything I knew how to do to help her feel
better.”). Calistri further stated that she was receiving threats
from Plaintiff's social media followers and that she feared
for her children's safety. (Dkt. No. 45, at 120). On October
1, 2022, Calistri sent Plaintiff's boyfriend another Facebook
message: “Since she has shared my above note that I sent
to you privately and I am now getting more threats, please
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have her share your comments that you posted publicly on the
Maltmed google reviews. It's no mystery who you are.” (Dkt.
No. 45, ¶ 98; Dkt. No. 45, at 121).
9 Although Plaintiff does not identify it as such, there
appears to be a screenshot of the Google review
attached to the Amended Complaint. (Dkt. No. 45,
at 121).
F. Attempts to Find New Neurologist
*5 On or about October 25, 2022, Plaintiff was denied as
a new patient by Saratoga Headache Center 10 even though
it was accepting new patients at the time. (Dkt. No. 45 ¶
119). Medical contact notes indicate that on October 21,
2022, Plaintiff asked one of her providers for a referral to Dr.
Jackson at Saratoga Headache and a referral was faxed that
day. (Dkt. No. 45, at 178). Approximately two hours after
the referral was faxed, Dr. Jackson called Plaintiff's provider
“to speak regarding this pt.,” and subsequently told Plaintiff's
provider that he “is not taking on this patient he believes her
case isn't qualified for their care” and that Plaintiff “would
need to go to a different neurologist.” (Id. at 178).
10 Saratoga Headache Center is a partner company of
Albany Med, Saratoga Hospital, and Glens Falls
Hospital. (Dkt. No. 45, ¶ 119).
December 15, 2022, Plaintiff's primary care provider, Marc
Price, DO, an employee of Albany Med, “cut[ ] [Plaintiff] off
from all medications and medical services with no legitimate
reason and without notice.” (Dkt. No. 45, ¶ 120). In a letter to
Plaintiff dated December 15, Dr. Price wrote: “It is with regret
that this letter serves to officially inform you that Family
Medicine of Malta will no longer be able to provide medical
care for you at this time.” (Dkt. No. 45, at 181).
G. Damages
On September 29, 2023, Plaintiff filed the present action.
(Dkt. No. 1). Plaintiff claims that the actions by Kirker, West,
and Calistri in accusing her of live streaming and asking
her to leave the emergency department have caused “severe
emotional distress” and that Calistri “caused interpersonal
struggles between the plaintiff and her boyfriend as a result
of her Facebook messages which caused the plaintiff and her
boyfriend serious emotional distress.” (Dkt. No. 45, ¶¶ 235–
36). In addition, Plaintiff “has developed PTSD,” and has
“experienced significant emotional and physical harm, pain
and suffering, additional medical expenses as she is too afraid
to go to any local hospital due to the retaliatory actions of
multiple local hospital systems and frequently travels out of
state for medical care.” (Id. ¶¶ 325–26).
III. STANDARD OF REVIEW
To survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), “a complaint must provide ‘enough facts
to state a claim to relief that is plausible on its face.’ ” Mayor
& City Council of Balt. v. Citigroup, Inc., 709 F.3d 129,
135 (2d Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
“Although a complaint need not contain detailed factual
allegations, it may not rest on mere labels, conclusions, or a
formulaic recitation of the elements of the cause of action,
and the factual allegations ‘must be enough to raise a right
to relief above the speculative level.’ ” Lawtone-Bowles
v. City of New York, No. 16-cv-4240, 2017 WL 4250513,
at *2, 2017 U.S. Dist. LEXIS 155140 (S.D.N.Y. Sept. 22,
2017) (Nathan, J.) (quoting Twombly, 550 U.S. at 555, 127
S.Ct. 1955). A court must accept as true all well-pleaded
factual allegations in the complaint and draw all reasonable
inferences in the plaintiff's favor. See EEOC v. Port Auth.,
768 F.3d 247, 253 (2d Cir. 2014) (citing ATSI Commc'ns,
Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)).
However, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Finally,
a pro se plaintiff's complaint “must be construed liberally
with ‘special solicitude’ and interpreted to raise the strongest
claims that it suggests.” Hogan v. Fischer, 738 F.3d 509, 515
(2d Cir. 2013) (quoting Hill v. Curcione, 657 F.3d 116, 122
(2d Cir. 2011)).
IV. DISCUSSION
A. Affordable Care Act (First Cause of Action)
*6 Defendants move to dismiss Plaintiff's ACA claim on the
grounds that it fails to allege sex or age-based discrimination
and that it fails to allege retaliation for engaging in protected
activity under the ACA. (Dkt. No. 63-5, at 13–16; Dkt. No.
68-4, at 16–20; Dkt. No. 66-1, at 12–13). Dr. Braiman seeks
dismissal of the ACA claim against him on the ground that
there is no individual liability under the ACA. (Dkt. No.
68-4, at 15–16). Defendants also seek dismissal of emotional
distress and punitive damages, asserting that there is no right
to recovery for such damages under the ACA. (Dkt. No. 63-5,
at 16–17; Dkt. No. 68-4, at 20). Plaintiff opposes Defendants’
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motions. (Dkt. No. 74, at 10–11; Dkt. No. 75 at 7–9; Dkt. No.
76, at 5–7).
The ACA “outlaws discrimination” “by healthcare entities
receiving federal funds” on the grounds prohibited by Title
VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.,
(race, color, and national origin discrimination), Title IX of
the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.,
(sex-based discrimination), the Rehabilitation Act, 29 U.S.C.
§ 794, (disability discrimination), or the Age Discrimination
Act of 1975, 42 U.S.C. § 6101 et seq., (age discrimination).
Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212,
218, 142 S.Ct. 1562, 212 L.Ed.2d 552 (2022) (citing 42
U.S.C. § 18116). It is “beyond dispute that private individuals
may sue to enforce” these antidiscrimination statutes. Id. at
218, 142 S.Ct. 1562 (quoting Barnes v. Gorman, 536 U.S.
181, 185, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002)).
Courts analyze ACA claims under the framework applicable
to the statute corresponding to the discrimination alleged. See
Klaneski v. Bristol Hosp., Inc., No. 22-cv-1158, 2023 WL
4304925, at *4, 2023 U.S. Dist. LEXIS 113107 (D. Conn.
June 30, 2023) (“The Supreme Court in Cummings noted
that the Affordable Care Act ‘incorporates the rights and
remedies’ provided by the statutes it incorporates.” (quoting
Cummings, 596 U.S. at 218, 142 S.Ct. 1562)). Thus,
where, as here, Plaintiff claims sex, age, and disability
discrimination, the Court analyzes her claims under the
framework applicable to Title IX, the Age Discrimination
Act, and the Rehabilitation Act. See id. 2023 WL 4304925,
at *3–4, 2023 U.S. Dist. LEXIS 113107 (analyzing the
plaintiff's claims for discrimination based on gender identity
or expression and discrimination based on sex under Title IX).
1. Individual Defendants
Dr. Braiman seeks dismissal on the ground that individuals
may not be held liable under the Affordable Care Act. (Dkt.
No. 68-4, at 15–16). The Court agrees. Indeed, there is
no individual liability under Title IX, Title VI, the Age
Discrimination Act, or the Rehabilitation Act. See Fitzgerald
v. Barnstable Sch. Comm., 555 U.S. 246, 257, 129 S.Ct. 788,
172 L.Ed.2d 582 (2009) (“Title IX reaches institutions and
programs that receive federal funds, 20 U.S.C. § 1681(a),
which may include nonpublic institutions, § 1681(c), but
it has consistently been interpreted as not authorizing suit
against school officials, teachers, and other individuals.”).
Further, the Affordable Care Act, which was enacted pursuant
to Congress’ authority under the Spending Clause, see
Cummings, 596 U.S. at 220, 142 S.Ct. 1562 (describing the
ACA as a “Spending Clause statute[ ]”), allows the imposition
of liability on certain recipients of federal funding, cf. Davis
ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526
U.S. 629, 640–41, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999)
(holding that for Title IX, “enacted pursuant to Congress’
authority under the Spending Clause,” “[t]he Government's
enforcement power may only be exercised against the funding
recipient”); see Abadi v. NYU Langone Health Sys., 705
F.Supp.3d 172, 188 (S.D.N.Y. 2023) (denying amendment to
include claim under ACA on grounds of futility, explaining
that such claim lacks merit as it is “consistent only with claims
brought against NYU Langone, not individual defendants.”);
Rightmyer v. Philly Pregnancy Ctr., P.C., No. 23-cv-1925,
2024 WL 897983, at *3, 2024 U.S. Dist. LEXIS 35906
(E.D. Pa. Mar. 1, 2024) (granting the individual defendants’
motion to dismiss the plaintiff's ACA claim alleging racial
discrimination (Title VI), noting that Third Circuit precedent
held that entities, not individuals could be sued under Title
VI); Owens v. Pearl River Cmty. Coll., No. 21-cv-140,
2022 WL 1434651, at *11, 2022 U.S. Dist. LEXIS 81530
(S.D. Miss. May 5, 2022) (“Because Plaintiff cannot state
a claim for individual liability under Title VI, Title IX, the
Rehabilitation Act, or the ADA, Plaintiff cannot state such a
claim under [the Affordable Care Act].”). Accordingly, to the
extent Plaintiff asserts an Affordable Care Act claim against
the individual Defendants, such claims are dismissed.
2. Sex-Based Discrimination
*7 Albany Med, Saratoga Hospital, Glens Falls Hospital,
and Malta Med (the “Hospital Defendants”) 11 move to
dismiss on the ground that Plaintiff fails to allege sex-based
discrimination, arguing that Plaintiff by her “own account,”
alleges that Dr. Braiman withheld treatment because of
concerns regarding “medical appropriateness.” (Dkt. No.
66-1, at 12). They assert that to the extent Plaintiff contends
she “should have been prescribed a medication regardless of
the fact that she was a woman of childbearing age, that is
a question about the professional standard in that medical
situation, and not a question of discrimination.” (Id.).
11 The Hospital Defendants’ briefing does not
meaningfully address the basis for liability of the
four entities Plaintiff sues: Albany Med, Saratoga
Hospital, Glens Falls Hospital, or Malta Med.
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Accordingly, the Court addresses Plaintiff's claims
against the Hospital Defendants as a collective,
without considering the theories of liability under
which they may be liable, such as vicarious
liability, (Dkt. No. 66-1, at 26) as a “partner” of
Albany Med, (see Dkt. No. 45, ¶ 12). Moving
forward, the parties should endeavor to identify the
proper Defendants for each claim.
The Second Circuit has held that “a complaint under Title
IX, alleging that the plaintiff was subjected to discrimination
on account of sex ... is sufficient with respect to the element
of discriminatory intent, like a complaint under Title VII,
if it pleads specific facts that support a minimal plausible
inference of such discrimination.” Doe v. Columbia Univ., 831
F.3d 46, 56 (2d Cir. 2016).
There may be, as the Hospital Defendants contend, a “wide
range of legitimate factors” that informed Dr. Braiman's
decision not to prescribe certain medications to Plaintiff.
Klaneski, 2023 WL 4304925, at *5, 2023 U.S. Dist.
LEXIS 113107. However, drawing all inferences in Plaintiff's
favor, the allegations that Dr. Braiman questioned Plaintiff
about what she would do in the event of a pregnancy
and told her that she should “think deeply” about her
current medication regimen, which included a medication
that could cause birth defects, as well as any decision
to terminate a pregnancy, and that she “would need to
bring her (male) partner in on the conversation regarding
her medical care and treatment,” (Dkt. No. 45, ¶¶ 47–
56), allow a plausible inference that Dr. Braiman's decision
not to prescribe an otherwise appropriate medication was
based on impermissible sex-based discrimination. Cf., e.g.,
Klaneski, 2023 WL 4304925, at *5–6, 2023 U.S. Dist.
LEXIS 113107 (granting the plaintiff leave to amend
claim that hospital pharmacy's failure to stock progesterone
constituted intentional discrimination against transgender
females under the ACA, recognizing that although a “wide
range of legitimate factors likely contribute to a hospital's
decision to stock particular medications” such issues raise
“factual matters that the Court should not resolve at the
pleading stage”). As the Hospital Defendants advance no
arguments concerning Plaintiff's claims of age or disability
discrimination, the Court does not consider those claims at
this time.
3. Retaliation
The Hospital Defendants argue that the ACA does not support
an independent cause of action for retaliation and that, in
any event, Plaintiff fails to allege she engaged in protected
activity. (Dkt. No. 66-1, at 12–13) (citing Lucas by & through
Lucas v. VHC Health, No. 22-cv-00987, 2023 WL 5615970,
at *5, 2023 U.S. Dist. LEXIS 153820 (E.D. Va. Aug. 30,
2023)). In Lucas, the Eastern District of Virginia dismissed
the plaintiff's claim that the defendants retaliated against
her because of her complaint of intentional discrimination,
noting it was “unaware of any case law that supports an
independent cause of action under Section 1557 of the ACA
for retaliation.” Lucas, 2023 WL 5615970, at *5. However,
other courts have assumed the viability of such claims. See,
e.g., Scott v. St. Louis Univ. Hosp., 600 F. Supp. 3d 956,
965 & n.2 (E.D. Mo. 2022) (applying Title IX standards
to retaliation claim under the ACA, explaining “that when
a funding recipient retaliates against a person because he
complains of sex discrimination, this constitutes intentional
‘discrimination’ ‘on the basis of sex,’ in violation of Title
IX”) (quoting Jackson v. Birmingham Bd. of Educ., 544 U.S.
167, 174, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005)). As
Defendants proffer no analysis regarding their argument, the
Court declines to dismiss on this basis at this time.
*8 The Hospital Defendants’ second argument—that
Plaintiff fails to allege that her complaint to Glens Falls
Hospital following her appointment with Dr. Braiman
“involved allegations protected by the Affordable Care
Act”—is more fruitful. To state a claim of retaliation under
Title IX, a plaintiff must show: “(1) protected activity
by the plaintiff; (2) knowledge by the defendant of the
protected activity; (3) adverse ... action; and (4) a causal
connection between the protected activity and the adverse
action.” Papelino v. Albany Coll. of Pharmacy of Union
Univ., 633 F.3d 81, 91 (2d Cir. 2011). “A ‘protected activity’
‘refers to action taken to protest or oppose statutorily
prohibited discrimination,’ and includes a wide range of
activities, like reporting discrimination, testifying in a
proceeding, or otherwise participating in an investigation
about discrimination.” Castro v. Yale Univ., 518 F. Supp. 3d
593, 611 (D. Conn. 2021) (quoting Siuzdak v. Sessions, 295
F. Supp. 3d 77, 96 (D. Conn. 2018)).
Here, Plaintiff alleges that on September 15, 2022 she
“made a formal complaint to Glens Falls Hospital Patient
Relations.” (Dkt. No. 45, ¶ 72). As Plaintiff does not allege
any facts about what she wrote in the complaint, and there
is nothing in the response she received from Glens Falls
Hospital that illuminates the nature of her complaint, (Dkt.
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No. 45, at 110) (recognizing Plaintiff's “concerns” and the
need for a “more sensitive and empathetic conversation”),
Plaintiff fails to allege facts suggesting she complained about
sex-based discrimination or engaged in conduct otherwise
protected by Title IX. See Sutton v. Stony Brook Univ., No.
18-cv-7434, 2020 WL 6532937, at *10, 2020 U.S. Dist.
LEXIS 206999 (E.D.N.Y. Nov. 5, 2020) (dismissing Title
IX retaliation claim, explaining that the plaintiff's alleged
complaints about a “personal beef” “contained no references
to gender-based discrimination or sexual harassment” and
thus failed to allege protected activity under Title IX);
see also, e.g., O'Connor v. New York State Dep't of Fin.
Servs., No. 21-cv-00828, 2022 WL 3998099, at *7, 2022
U.S. Dist. LEXIS 157933 (N.D.N.Y. Sept. 1, 2022) (finding
that the plaintiff's “conclusory allegations” were “devoid
of any facts that would allow an inference that Plaintiff
complained of disability discrimination” and that there was
therefore “no basis to infer that Plaintiff's vague complaints
constituted protected activity under the Rehabilitation Act”).
Thus, Plaintiff has failed to allege facts that would allow
a plausible inference that she engaged in protected activity.
Accordingly, Plaintiff's retaliation claim is dismissed.
4. Damages
Defendants properly argue that emotional distress and
punitive damages are unavailable under the Affordable Care
Act. In Cummings v. Premier Rehab Keller, P.L.L.C., the
Supreme Court held that “emotional distress damages are not
recoverable” under the Rehabilitation Act and the Affordable
Care Act, the two “Spending Clause antidiscrimination
statutes” under consideration in that case. 596 U.S. 212, 230,
142 S.Ct. 1562, 212 L.Ed.2d 552 (2022); see also id. at
216, 142 S.Ct. 1562 (noting that punitive damages are also
unavailable (citing Barnes v. Gorman, 536 U.S. 181, 189, 122
S.Ct. 2097, 153 L.Ed.2d 230 (2002)). The Court reasoned
that “Spending Clause legislation operates based on consent”
and therefore that the “scope of available remedies” depends
on whether a prospective funding recipient would have been
aware that it might face such liability. Id. at 219–20, 142 S.Ct.
1562. Because it is “hornbook law that ‘emotional distress
is generally not compensable in contract,’ ” the Court could
not “treat federal funding recipients as having consented to be
subject to damages for emotional distress,” and such damages
therefore are not recoverable under the Rehabilitation Act
and ACA. Id. at 221–22, 142 S.Ct. 1562 (citation omitted).
Accordingly, Plaintiff's claims for emotional distress and
punitive damages under the ACA are dismissed.
B. Title II of the Civil Rights Act and Title IX (Second
Cause of Action)
*9 Dr. Braiman and the Hospital Defendants move to
dismiss Plaintiff's Second Cause of Action, which, read
liberally, appears to allege a claim under Title II of the Civil
Rights Act of 1964, 42 U.S.C. § 2000a and Title IX. (Dkt. No.
45, at 23–31). Plaintiff opposes Defendants’ motion. (Dkt.
No. 76, at 7–14).
1. Title II of the Civil Rights Act of 1964
Title II of the Civil Rights Act of 1964 provides: “All
persons shall be entitled to the full and equal enjoyment
of the goods, services, facilities, privileges, advantages, and
accommodations of any place of public accommodation ...
without discrimination or segregation on the ground of race,
color, religion, or national origin.” 42 U.S.C. § 2000a(a).
However, Plaintiff fails to allege discrimination based on race,
color, religion, or national origin. And to the extent Plaintiff
seeks to assert a discrimination claim based on sex, Title II
is inapplicable. See Antonetti on Behalf of C.J.A. v. Dave &
Busters 42nd St. Times Square, No. 23-cv-0101, 2023 WL
1869012, at *4, 2023 U.S. Dist. LEXIS 22487 (S.D.N.Y. Feb.
6, 2023) (finding the plaintiff's Title II claim fails “because
Title II, by its own terms, does not protect against gender
discrimination”) (collecting cases). Accordingly, Plaintiff's
Title II claim is dismissed.
2. Title IX
The Hospital Defendants assert that to the extent Plaintiff
asserts a claim of sex-based discrimination under Title
IX, it must be dismissed because Plaintiff fails to allege
she experienced any discrimination in connection with an
educational institution. (Dkt. No. 66-1, at 14–15 & n.4).
Plaintiff opposes dismissal. (Dkt. No. 76, at 7).
“A threshold issue” in any Title IX case is whether the
defendant “is ‘an education program or activity receiving
Federal financial assistance.’ ” Romero v. City of New York,
839 F. Supp. 2d 588, 613 (E.D.N.Y. 2012) (quoting 20
U.S.C. § 1681). Thus, “in order to implicate Title IX in
the first instance, an entity must have features such that
one could reasonably consider its mission to be, at least
in part, educational.” O'Connor v. Davis, 126 F.3d 112,
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117 (2d Cir. 1997). Here, the only conduct alleged in the
Amended Complaint that could arguably fall under Title IX
is Dr. Braiman's allegedly gender-based denial of prescription
medicine to Plaintiff on September 14, 2022. 12 According
to the Amended Complaint, Dr. Braiman is employed by the
Neurology Department at Glens Falls Hospital, a voluntary
non-profit private hospital owned by Albany Med. (Dkt.
No. 45, ¶ 2). Plaintiff alleges that “Albany Medical Center
and Albany Med[ ] provide educational programs and
services as an integral part of their mission,” including
“medical training, clinical education, internships, residencies,
or other educational activities,” and “receives federal funding
specifically for educational programs.” (Dkt. No. 45, at 27).
However, the Amended Complaint is devoid of allegations
that the Glens Falls Hospital has any educational “features,”
see Davis, 126 F.3d at 117, or that Glens Falls Hospital
has any connection to the educational component of Albany
Med beyond being owned by Albany Med. Cf., Castro v.
Yale Univ., 518 F. Supp. 3d 593, 604–05 (D. Conn. 2021)
(finding allegations that the contractual arrangement between
the defendant hospital and university “formally integrat[ed]
the hospital with the university to share both staff and
resources” and that the hospital received “federal funding
because of its status as a teaching hospital” were sufficient to
demonstrate hospital was subject to Title IX); see also Gillen
v. Borough of Manhattan Cmty. Coll., No. 97-cv-3431, 1999
WL 221105, at *3, 1999 U.S. Dist. LEXIS 4862 (S.D.N.Y.
Apr. 14, 1999) (finding that because complaint did not set out
the relationship between the defendant labor union and the
defendant community college or the defendant university and
did not specify “who among the Defendants would constitute
a recipient of federal funds,” there was no basis to infer
that the defendant labor union, which represented college/
university employees, was subject to Title IX); Romero v.
City of New York, 839 F. Supp. 2d 588, 614 (E.D.N.Y. 2012)
(rejecting, at summary judgment, the plaintiff's argument
that the defendant department was subject to Title IX as an
“agent of the city, which operates educational programs and
received federal funding, explaining that there were no facts
suggesting that the department's mission was educational, and
that without more, the city's receipt of “federal funding and
operat[ion of] educational programs or activities does not
mandate a finding that all of its various departments ... and
the subdivisions of those departments ... are subject to Title
IX”). Thus, Plaintiff's Title IX claim is dismissed.
12 The Court recognizes that a plaintiff may bring a
retaliation claim under Title IX. Here, however,
Plaintiff fails to allege protected conduct and thus
fails to state a retaliation claim.
*10 Accordingly, Defendants’ motion to dismiss Plaintiff's
Title IX claim (Second Cause of Action) is granted.
C. Age Discrimination Act of 1975 (Third Cause of
Action)
Dr. Braiman and the Hospital Defendants move to
dismiss Plaintiff's claim of discrimination under the Age
Discrimination Act of 1975, 42 U.S.C. § 6101 et seq., on
the grounds that Plaintiff has failed to allege exhaustion of
administrative remedies and that the Amended Complaint
fails to state a claim for relief. (Dkt. No. 68-4, at 22; Dkt. No.
66-1, at 15–17). Plaintiff opposes Defendants’ motions. (Dkt.
No. 75, at 14; Dkt. No. 76, at 10–14)
Section 6102 of the Age Discrimination Act prohibits
discrimination on the basis of age under any program or
activity that receives federal financial assistance. 42 U.S.C. §
6102. “A plaintiff alleging a claim pursuant to the Act must
first exhaust administrative remedies.” Esposito v. Hofstra
Univ., No. 11-cv-2364, 2012 WL 607671, at *4, 2012 U.S.
Dist. LEXIS 2397 (E.D.N.Y. Feb. 24, 2012) (citing 42 U.S.C.
§ 6104(f)). Section 6104(e)(1) provides:
When any interested person brings
an action in any United States
district court for the district in which
the defendant is found or transacts
business to enjoin a violation of
this Act by any program or activity
receiving Federal financial assistance,
such interested person shall give notice
by registered mail not less than 30 days
prior to the commencement of that
action to the Secretary of Health and
Human Services, the Attorney General
of the United States, and the person
against whom the action is directed.
43 U.S.C. § 6104(e)(1); see also 42 U.S.C. § 6104(f)
(providing that “administrative remedies shall be deemed
exhausted upon the expiration of 180 days from the filing of
an administrative complaint during which time the Federal
department or agency makes no finding with regard to the
complaint, or upon the day that the Federal department or
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agency issues a finding in favor of the recipient of financial
assistance, whichever occurs first”). Here, Plaintiff states
in her opposition papers, that “she did submit [notice], by
certified and registered mail, no less than 30 days prior to
the commencement of [this action] to Health and Human
Services and contacted the Attorney General and the state
obudsman [sic].” (Dkt. No. 76, at 10). Defendants reply
that even crediting this statement, Plaintiff fails to state
that notice was provided to “the person against whom the
action is directed.” (Dkt. No. 78, at 8) (quoting 42 U.S.C.
§ 6104(e)(1)). The Court agrees. Section 6104(e)(1) requires
that notice be provided to “the person against whom the
action is directed,” and here Plaintiff fails to allege that she
provided notice to Dr. Braiman or the Hospital Defendants.
Accordingly, Plaintiff's Age Discrimination Act claim is
dismissed. Lipsman v. Cortés-Vázquez, No. 21-cv-4631, 2021
WL 5827129, at *3, 2021 U.S. Dist. LEXIS 234203 (S.D.N.Y.
Dec. 7, 2021) (dismissing Age Discrimination Act claim
where the plaintiff “did not satisfy the notice and exhaustion
requirements of the statute”); Morales v. SUNY Purchase
Coll., No. 14-cv-8193, 2015 WL 7430864, at *4, 2015 U.S.
Dist. LEXIS 157314 (S.D.N.Y. Nov. 19, 2015) (“Without
giving the required notice, Plaintiff's [Age Discrimination
Act] claim is improperly filed and requires dismissal.”).
D. Patient Self-Determination Act (Fourth Cause of
Action)
*11 Dr. Braiman, Albany Med, and Glens Falls Hospital
move to dismiss Plaintiff's claim under the Patient Self-
Determination Act, 42 U.S.C. § 1395cc(f) on the ground
that it does not create a private right of action. (Dkt. No.
68-4, at 22–23; Dkt. No. 66-1, at 18–19). Plaintiff opposes
Defendants’ motion. (Dkt. No. 76, at 14–15).
The Second Circuit has instructed that a “court must ‘begin
[its] search for Congress's intent with the text and structure’
of the statute, and cannot ordinarily conclude that Congress
intended to create a right of action when none was explicitly
provided.” Olmsted v. Pruco Life Ins. Co. of New Jersey,
283 F.3d 429, 432 (2d Cir. 2002) (quoting Alexander v.
Sandoval, 532 U.S. 275, 288, 121 S.Ct. 1511, 149 L.Ed.2d
517 (2001)). As the Seventh Circuit described it, the provision
at issue here, Section 1395cc(f), requires that a “hospital
that accepts Medicare and Medicaid payments must give
an adult individual who is ‘receiving medical care’ as an
inpatient written material explaining the rights to refuse
treatment and to create an advance directive under state law.”
Winfield v. Mercy Hosp. & Med. Ctr., 591 F. App'x 518, 519
(7th Cir. 2015) (citing 42 U.S.C. §§ 1395cc(f)(1), (2)(A)).
Courts have found that no express private right of action in
42 U.S.C. § 1395cc in general, or in the written materials
requirement set forth in § 1395cc(f), in particular. Wentz v.
Kindred Hosps. E., L.L.C., 333 F. Supp. 2d 1298, 1301, 1303
(S.D. Fla. 2004) (finding “§ 1395cc contains no express” or
implied right of action); Winfield v. Mercy Hosp. & Med.
Ctr., 591 F. App'x 518, 519 (7th Cir. 2015) (observing that
the district court found no explicit private right of action);
Asselin v. Shawnee Mission Med. Ctr., Inc., 894 F. Supp.
1479, 1485 (D. Kan. 1995) (noting that it had previously
found that 42 U.S.C. § 1395cc(f)(1)(A) and § 1395cc(f)(2)
(A) “do not afford plaintiff a private cause of action” and
further finding “no implied private cause of action”). Further,
Plaintiff does not argue that there is an implied private right
of action under § 1395cc(f), see Olmstead, 283 F.3d at 433
(“A strong presumption that Congress did not intend a private
right of action places a heavy burden on the plaintiffs to
demonstrate otherwise.”), and the Court is not aware of any
case finding an implied right of action, see, e.g., Myers v.
UCSF Med. Ctr., No. 22-cv-07813, 2023 WL 6202065, at
*5, 2023 U.S. Dist. LEXIS 169630 (N.D. Cal. Mar. 2, 2023)
(“Nor has the undersigned found any case in which a court
has held that the PSDA implicitly creates a private right
of action.”), report and recommendation adopted, 2023 WL
6202063, 2023 U.S. Dist. LEXIS 172197 (N.D. Cal. June
22, 2023). Accordingly, Plaintiff's Patient Self-Determination
Act claim 13 is dismissed. 14
13 The Hospital Defendants note Plaintiff's citation
to “New York Public Health Law Article 29-B –
Patients’ Bill of Rights” under the Fourth Cause
of Action in the Amended Complaint. (Dkt. No.
45, at 37–38). Plaintiff outlines the provisions of
this New York law in the Amended Complaint,
but does not appear to assert a cause of action
under the “Patients’ Bill of Rights.” Nor does
Plaintiff mention the “Patients’ Bill of Rights” in
her opposition. (See Dkt. No. 76). Accordingly, the
Court does not read the Amended Complaint as
attempting to assert such a claim.
14 In her submissions, Plaintiff cited a number of
cases that the Court and defense counsel were
unable to find or verify, including “Delany v.
Cade (5th Cir. 1994),” which Plaintiff cited for
the proposition that the Fifth Circuit “allowed a
private cause of action under the [Patient Self-
Determination Act].” (Dkt. No. 75, at 14; see
Dkt. No. 81, at 8 (Defendants explaining that
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“[u]pon thorough review ... no such case exists”)).
To the extent Plaintiff intended to cite the Tenth
Circuit case, Delaney v. Cade, 986 F.2d 387
(10th Cir. 1993), it offers no support for her
position. Plaintiff also cited “Acosta v. Byrum
(M.D. Tenn. 2008),” (Dkt. No. 45, ¶ 326), and
although the Court located a case by the same
name, it is not a federal district court case,
but a case from the Court of Appeals of North
Carolina, Acosta v. Byrum, 180 N.C.App. 562, 638
S.E.2d 246 (N.C. Ct. App. 2006), applying North
Carolina law. Other cases Plaintiff cited in her
submissions that the defense counsel or the Court
were unable to locate or verify include: “Swafford
v. Maricop County Public Hospital,” “Tatum v.
Black (1991),” “Estate of Behringer v. WCA
Hospital (2013),” “Oliveira v. Providence Health
System of Southern California (2004),” and “Roe
v. Lewisville Memorial Hospital (2008),” (Dkt.
No. 45, ¶ 279); and “Zinman v. Shalala (D.N.J.
2003),” “Knepper v. Ogden Regional Medical
Center (D. Utah 2006),” and “Dwyer v. American
Express Co. (S.D.N.Y. 2007),” (Dkt. No. 45, ¶
326). In any future filings Plaintiff must include
a full citation of any case cited. The Court will
not consider any case that is only cited with the
parties’ names and the date of the case; every
case cite must include a citation to the reporter or
online legal service, like Westlaw or LexisNexis,
or the court and court case number and docket
number where the case may be found. The Court
notes that “ChatGPT and similar AI programs
are capable of generating fake case citations and
other misstatements of law.” Dukuray v. Experian
Info. Sols. (Dukuray I), No. 23-cv-9043, 2024
WL 3812259, at *11–12, 2024 U.S. Dist. LEXIS
132667 (S.D.N.Y. July 26, 2024), adopted by
Dukuray v. Experian Info. Sols. (Dukuray II), 2024
WL 3936347, 2024 U.S. Dist. LEXIS 152287
(S.D.N.Y. Aug. 26, 2024). Plaintiff is warned that
any future filings “with citations to nonexistent
cases may result in sanctions, such as her
submissions being stricken, filing restrictions or
monetary penalties being imposed, or the case
being dismissed.” Dukuray, 2024 WL 3812259
at *12, 2024 U.S. Dist. LEXIS 132667; see also
Dukuray II, 2024 WL 3936347, at *4, 2024 U.S.
Dist. LEXIS 152287 (same).
E. Federal Criminal Statutes (Fifth, Seventh, and
Ninth Causes of Action)
*12 Dr. Braiman and the Hospital Defendants move to
dismiss Plaintiff's claim that they made “false statements
relating to healthcare,” in violation of 18 U.S.C. § 1035, (Dkt.
No. 68-4, at 23–24), Kirker, West, Calistri, and Albany Med
move to dismiss Plaintiff's claims under 18 U.S.C. §§ 241
(conspiracy against rights), 242 (deprivation of rights under
color of law), 371 (conspiracy), (Dkt. No. 63-5, at 19–20;
Dkt. No. 66-1, at 21), and Defendants Calistri, Albany Med,
and Malta Med move to dismiss Plaintiff's claims under 18
U.S.C. § 1347 (health care fraud), (Dkt. No. 63-5, at 33–
34; Dkt. No. 66-1, at 21). Defendants seek dismissal on the
ground that there is no private right of action under the federal
criminal statutes on which Plaintiff relies. (Dkt. No. 63-5, at
19–20; Dkt. No. 68-4, at 23–24; Dkt. No. 66-1, at 21). Plaintiff
opposes dismissal. (Dkt. No. 74, at 11–12; Dkt. No. 75, at 14;
Dkt. No. 76, at 16).
Section 1035, which criminalizes false statements relating to
healthcare, does not provide a private right of action. See
Rodriguez v. Dougherty, No. 23-cv-1542, 2024 WL 896752,
at *9, 2024 U.S. Dist. LEXIS 36056 (D. Conn. Mar. 1,
2024) (dismissing the plaintiff's claim that various defendants
violated his rights under several federal criminal statutes,
including 18 U.S.C. § 1035, on the ground that the statutes
at issue did not provide a private right of action). Plaintiff's
claims based on Defendants’ alleged violation of other federal
criminal statutes, 18 U.S.C. §§ 241, 242, 371, 1347 likewise
fail. Dyce v. Doe, No. 23-cv-8730, 2024 WL 1468305, at *2,
2024 U.S. Dist. LEXIS 62419 (E.D.N.Y. Apr. 4, 2024) (“To
the extent that Plaintiff seeks to invoke the Court's jurisdiction
by bringing her claims under 18 U.S.C. § 242 (‘Section 242’),
a criminal civil rights statute, she may not do so. Section 242
does not provide a private right of action.”) (citing Sheehy
v. Brown, 335 F. App'x 102, 104 (2d Cir. 2009)); see also
Sheehy, 335 F. App'x at 104 (“[C]laims based on the violation
of federal criminal statutes, such as 18 U.S.C. §§ 241–242 ...
are not cognizable, as federal criminal statutes do not provide
private causes of action.”); Hom v. Brennan, 840 F. Supp. 2d
576, 582 (E.D.N.Y. 2011) (explaining that “[t]he law in this
Circuit is clear that there is no private right action under”
18 U.S.C. § 371) (citing cases); Graham v. Yazdani, No. 14-
cv-6020, 2014 WL 5506719, at *1, 2014 U.S. Dist. LEXIS
154428 (E.D.N.Y. Oct. 31, 2014) (finding no private right of
action under 18 U.S.C. § 1347). Accordingly, Plaintiff's claim
under 18 U.S.C. §§ 241, 242, 371, 1035, 1347 are dismissed.
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F. HIPAA (Sixth Cause of Action)
Defendants Kirker, West, Calistri, and the Hospital
Defendants move to dismiss Plaintiff's HIPAA claim on the
ground that HIPAA does not provide a private right of action.
(Dkt. No. 63-5, at 17–19; Dkt. No. 66-1, at 18–19). Plaintiff
opposes dismissal. (Dkt. No. 74, at 11; Dkt. No. 76, at 14–15).
The Second Circuit has held that “HIPAA confers no private
cause of action, express or implied.” Meadows v. United
Servs., Inc., 963 F.3d 240, 244 (2d Cir. 2020). Accordingly,
Defendants’ motion to dismiss Plaintiff's HIPAA claim is
granted.
G. 42 U.S.C. § 1983 (Seventh Cause of Action)
Kirker, West, Calistri, and Albany Med move to dismiss
Plaintiff's claim under 42 U.S.C. § 1983, including
any allegation that Defendants violated Plaintiff's First
Amendment rights, on the ground that the Amended
Complaint fails to allege any Defendant is a “state
actor.” (Dkt. No. 66-1, at 21–23). Plaintiff opposes dismissal.
(Dkt. No. 74, at 13–16; Dkt. No. 76, at 16).
It is well-settled that a plaintiff alleging a violation of her
constitutional rights under Section 1983 must show state
action. Fabrikant v. French, 691 F.3d 193, 206 (2d Cir. 2012);
see also 42 U.S.C. § 1983 (imposing liability on persons who
act “under color of any [state] statute, ordinance, regulation,
custom, or usage”). While private parties generally are not
state actors, their conduct can be attributed to the state for
Section 1983 purposes if “(1) the State compelled the conduct
[the “compulsion test”], (2) there is a sufficiently close
nexus between the State and the private conduct [the “joint
action test” or “close nexus test”], or (3) the private conduct
consisted of activity that has traditionally been the exclusive
prerogative of the state [the “public function test”].” Hogan
v. A.O. Fox Mem'l Hosp., 346 F. App'x 627, 629 (2d Cir.
2009) (summary order) (citing Sybalski v. Indep. Grp. Home
Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008)). The
“fundamental question” for each test is whether the private
party's conduct is “fairly attributable” to the state such that it
bears responsibility. Fabrikant, 691 F.3d at 207.
*13 “Under the compulsion test, private behavior becomes
state action if ‘it results from the State's exercise of coercive
power,’ or ‘the State provides significant encouragement,
either overt or covert.’ ” Jackson v. Barden, No. 12-cv-1069,
2018 WL 340014, at *14, 2018 U.S. Dist. LEXIS 3861
(S.D.N.Y. Jan. 8, 2018) (quoting Brentwood Acad. v. Tenn.
Secondary Sch. Ath. Ass'n, 531 U.S. 288, 296, 121 S.Ct. 924,
148 L.Ed.2d 807 (2001)). Here, there are no allegations that
the state was involved with the activities that occurred in
the emergency department at Malta Med on September 21,
2022, or thereafter. Plaintiff alleges that Kirker and West acted
on their individual authority and judgment, and that Calistri
acted at Kirker and West's directions and on her own authority
and judgment in telling Plaintiff to stop “live streaming” and
discharging Plaintiff from the emergency department. See
Sybalski, 546 F.3d at 257–58 (pleading that the “state was
involved ‘with the activity that caused the injury’ giving rise
to the action” is necessary to allege state action under the
compulsion test (quoting Schlein v. Milford Hosp., Inc., 561
F.2d 427, 428 (2d Cir. 1977))).
“The close nexus test attributes private action to the state
when there is ‘a sufficiently close nexus between the State
and the challenged action of the [private] regulated entity
so that the action of the latter may be fairly treated as
that of the State itself.’ ” McGugan v. Aldana-Bernier, No.
11-cv-00342, 2012 WL 1514777, at *5, 2012 U.S. Dist.
LEXIS 60340 (E.D.N.Y. Apr. 30, 2012) (quoting Blum v.
Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534,
(1982)), aff'd, 752 F.3d 224 (2d Cir. 2014). This requirement
assures “that constitutional standards are invoked only when
it can be said that the State is responsible for the specific
conduct of which the plaintiff complains.” Blum, 457 U.S.
at 1004, 102 S.Ct. 2777. Thus, to satisfy the “ ‘joint action
test’ or ‘close nexus test,’ ” a plaintiff must allege that
“the state provides ‘significant encouragement’ to the entity,
the entity is a ‘willful participant in joint activity with the
[s]tate,’ or the entity's functions are ‘entwined’ with state
policies.” Hollander v. Copacabana Nightclub, 624 F.3d
30, 34 (2d Cir. 2010) (quoting Sybalski, 546 F.3d at 257).
Here, however, there are no allegations that the Kirker, West,
Calistri, or anyone from the Defendant Hospitals worked with
state employees in connection with any interaction with, or
decision they made regarding Plaintiff or her health care. See
McGugan, 2012 WL 1514777, at *6, 2012 U.S. Dist. LEXIS
60340 (finding “no sufficiently close nexus between the state
and the defendant's decisions because the private hospital
did not consult or contact state employees regarding the
evaluation or commitment of plaintiff nor did state officials
participate in the commitment process in any way”).
According to the Amended Complaint, Kirker is the senior
vice president of patient services and chief of nursing at
Glens Falls Hospital, a private hospital. (Dkt. No. 45, ¶ 5).
West is the Administrative Director of Emergency Services
at Saratoga Hospital, a private hospital. (Id. ¶ 6). Calistri is a
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nurse practitioner, employed by Malta Med, a private hospital.
(Id. ¶ 8). Other than allegations that each hospital receives
federal funding and accepts federal Medicare and state
Medicaid, there are no other factual allegations connecting
these Defendants to the state. See Lagueux v. Bridgeport
Hosp. Sch. of Nursing, No. 11-cv-01933, 2013 WL 1310557,
at *4, 2013 U.S. Dist. LEXIS 43211 (D. Conn. Mar. 27,
2013) (“Although the complaint contains references to federal
funding received by one or more of the defendants, such
funding does not demonstrate that those defendants were state
actors.”).
Nor has Plaintiff alleged facts establishing the applicability
of the public function test. Plaintiff alleges that Defendants
were acting in their capacity of as healthcare providers
employed by Albany Med and its subsidiaries, that this
employment “constitutes state action” and that the provision
of “essential healthcare services” are “functions traditionally
reserved to the state.” (Dkt. No. 45, at 51–52). In general,
“a private hospital will not be considered a state actor.”
Giraldo v. United States, No. 14-cv-5568, 2015 WL 1476409,
at *2, 2015 U.S. Dist. LEXIS 42746 (E.D.N.Y. Mar. 31,
2015). Further, as the Second Circuit has explained, although
a hospital's activities “are clearly ‘affected with a public
interest,’ the functions performed by it have not been
‘traditionally associated with sovereignty,’ and have long
been relegated to the private domain, rather than treated
as ‘traditionally the exclusive prerogative of the State.’ ”
Schlein, 561 F.2d at 429 (quoting Jackson v. Metro. Edison
Co., 419 U.S. 345, 353, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)).
Accordingly, Plaintiff's claims under 42 U.S.C. § 1983 are
dismissed.
H. EMTALA (Eighth Cause of Action)
*14 Kirker, West, Calistri, Albany Med, and Malta Med
move to dismiss Plaintiff's claims under EMTALA, 42 U.S.C.
§ 1395dd. (Dkt. No. 63-5, at 29–33; Dkt. No. 66-1, at 19–
21). Plaintiff opposes Defendants’ motions. (Dkt. No. 74, at
16; Dkt. No. 76, at 15;). Kirker, West, and Calistri move
for dismissal on the ground that liability under EMTALA
is available against hospitals, but not against individual
healthcare providers. (Dkt. No. 63-5, at 31). Albany Med and
Malta Med move to dismiss on the ground that the Amended
Complaint fails to state a claim for relief. (Dkt. No. 66-1, at
20–21).
1. Individual Defendants
“The purpose of EMTALA is to prevent ‘patient dumping,
the practice of refusing to provide emergency medical
treatment to patients unable to pay, or transferring them before
emergency conditions [are] stabilized.’ ” Hardy v. New York
City Health & Hosp. Corp., 164 F.3d 789, 792 (2d Cir. 1999)
(quoting Power v. Arlington Hosp. Ass'n, 42 F.3d 851, 856
(4th Cir. 1994)). EMTALA expressly allows a patient to bring
a civil suit for damages for an EMTALA violation against a
“participating hospital.” 42 U.S.C. § 1395dd(d)(2)(A). Here,
however, in addition to suing Albany Med and Malta Med,
Plaintiff sues three of the individual Defendants: Kirker, West,
and Calistri. (Dkt. No. 45, ¶ 269). Although the Second
Circuit has not addressed the issue, the Fourth, Sixth, Eighth,
Ninth, and Tenth Circuits have held that EMTALA does not
allow a private right of action against individual physicians.
See Baber v. Hosp. Corp. of Am., 977 F.2d 872, 877 (4th Cir.
1992) (“Although the statute clearly allows a patient to bring
a civil suit for damages for an EMTALA violation against
a participating hospital, no section permits an individual to
bring a similar action against a treating physician.”) (internal
citation omitted) (citing 42 U.S.C. § 1395dd(d)(2)(A)); Moses
v. Providence Hosp. & Med. Centers, Inc., 561 F.3d 573, 587
(6th Cir. 2009); King v. Ahrens, 16 F.3d 265, 271 (8th Cir.
1994); Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1256
(9th Cir. 1995); Delaney v. Cade, 986 F.2d 387, 393–94 (10th
Cir. 1993); see also Gatewood v. Wash. Healthcare Corp.,
933 F.2d 1037, 1040 n.1 (D.C. Cir. 1991) (dicta). District
courts within the Circuit have held likewise. See Fisher by
Fisher v. New York Health & Hosps. Corp., 989 F. Supp.
444, 448 (E.D.N.Y. 1998) (“Congress obviously considered
enforcement mechanisms against participating hospitals and
physicians, and chose to provide a private right of action
against only hospitals, while authorizing the Secretary of
Health and Human Services to proceed administratively
against both hospitals and physicians.”) (internal citation
omitted) (citing 42 U.S.C. §§ 1395dd(d)(1), (2)(A), (2)(B));
Hylton v. New York Methodist Hosp., 708 F. Supp. 2d 248,
252 (E.D.N.Y. 2009) (“There is no dispute that EMTALA
is inapplicable to individual physicians.”). Kirker, West, and
Calistri are healthcare providers and hospital administrators,
not physicians, but this is a distinction without a difference
as the only defendant EMTALA, by its terms, allows an
individual to sue is a “participating hospital.” 42 U.S.C. §
1395dd(d)(2)(A). Thus, the EMTALA claims against Kirker,
West, and Calistri are dismissed.
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2. Hospital Defendants 15
15 Malta Med argues that as it an emergent care
center and does not provide inpatient care, it is
not a hospital subject to EMTALA. (Dkt. No.
66-1, at 20–21). Whether Malta Med provides
inpatient care concerns a factual matter outside the
Amended Complaint. Therefore, the Court declines
to consider this argument. Moreover, the Amended
Complaint alleges that Plaintiff was, at some point,
“inpatient at Malta Med,” (Dkt. No. 45, at 76), a
fact the Court must accept as true at this stage of
the litigation.
*15 The Hospital Defendants seek dismissal of Plaintiff's
EMTALA claim on the ground that Plaintiff “fails to allege
facts sufficient to show she suffered from an emergency
medical condition upon arriving at Malta Med.” (Dkt. No.
66-1, at 20). EMTALA “imposes two relevant obligations
on a hospital receiving an emergency patient”: (1) the
hospital “must provide for an appropriate medical screening
examination ... to determine whether or not an emergency
medical condition ... exists” (“screening requirement”); and
(2) if the hospital “determines that that an individual has an
‘emergency medical condition,’ it ‘must provide ... for such
further medical examination and such treatment as may be
required to stabilize the medical condition,’ ” (“stabilization
requirement”). Perez v. Brookdale Univ. Hosp. & Med. Ctr.,
981 F. Supp. 2d 175, 177 (E.D.N.Y. 2013) (quoting 42
U.S.C. §§ 1395dd(a)–(b)). In this case, Plaintiff alleges
that the Defendant Hospitals failed to meet the stabilization
requirement: they failed to stabilize her emergency medical
condition prior to discharge, (Dkt. No. 45, ¶ 275 (alleging
that Plaintiff was “escorted off hospital premises after an
[emergency medical condition] was found to exist without
first stabilizing the Plaintiff's condition or transferring the
Plaintiff to another facility”)). 16
16 Plaintiff states she received a “full screening”
at Malta Med. (See Dkt. No. 45, ¶ 280
(“Malta Med Emergent Care conducted a full
screening on the plaintiff and noted a number of
concerning symptoms that they deemed needed
stabilization.”)).
In order to state a claim under EMTALA, a plaintiff must
allege that she “went to the emergency room of a participating
hospital seeking treatment for a medical condition, and that
the hospital ... discharged or transferred her before such
[her emergency medical] condition had been stabilized.”
Brenord v. Cath. Med. Ctr. of Brooklyn & Queens, Inc., 133
F. Supp. 2d 179, 185 (E.D.N.Y. 2001) (citing Fisher, 989
F. Supp. at 448). Here, the Defendant Hospitals argue that
Plaintiff's EMTALA claim fails because she fails to allege
facts sufficient to show she suffered from an emergency
medical condition. The statute defines “emergency medical
condition” as “a medical condition manifesting itself by
acute symptoms of sufficient severity (including severe pain)
such that the absence of immediate medical attention could
reasonably be expected to result in ... placing the health of the
individual ... in serious jeopardy; serious impairment to bodily
functions; or ... [s]erious dysfunction of any bodily organ or
part.” 42 U.S.C. § 1395dd(e)(1). The Hospital Defendants
argue Plaintiff's allegations that she was “crying, sweating,
and shaking with a heightened pulse and blood pressure”
upon arrival are insufficient to allow a plausible inference
“that her health was in serious jeopardy, that her body
functions were seriously impaired, or that any bodily organ
or part was seriously dysfunctional.” (Dkt. No. 66-1, at 20).
However, in support of her claim that she was experiencing an
emergency medical condition, Plaintiff also alleges that she
was experiencing “complications due to the untreated cluster
headaches,” including pain, that her “vitals,” including her
blood pressure and pulse “were dangerously out of range” and
“abnormally high,” and that her “documented cardiovascular
conditions” “including POTS (post orthostatic tachycardia
syndrome) and venous insufficiency” “were discussed and
documented during her visit to Malta Med.” (Dkt. No. 45, ¶¶
73–74, 93, 279). These allegations are sufficient to allege an
emergency medical condition at this stage of the proceedings.
As the Hospital Defendants do not otherwise challenge the
merits of Plaintiff's EMTALA claim, their motion to dismiss
is denied.
Accordingly, Plaintiff's EMTALA claims against Kirker,
West, and Calistri are dismissed and the Defendant Hospital's
motion to dismiss Plaintiff's EMTALA claims are denied.
I. Americans with Disabilities Act (Tenth Cause of
Action)
Plaintiff alleges Dr. Braiman, Albany Med, and Glens Falls
Hospital subjected her to disability discrimination in violation
of Title II and Title III of the ADA. (Dkt. No. 45, ¶ 311). These
Defendants move to dismiss Plaintiff's ADA claims. (Dkt.
No. 66-1, at 17–18; Dkt. No. 68-4, at 24). Defendants argue
that because Plaintiff, as a private individual, can only seek
injunctive (as opposed to compensatory) relief under Title III
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of the ADA, 17 and fails to allege a “material risk of future
harm,” she lacks standing to pursue a claim of injunctive
relief under the ADA. (Dkt. No. 66-1, at 17). Defendants
further argue the Amended Complaint fails to allege disability
discrimination. (Dkt. No. 66-1, at 17–18; Dkt. No. 68-4, at
24). Plaintiff opposes Defendants’ motions. (Dkt. No. 75, at
14; Dkt. No. 76, at 12–14).
17 “Monetary relief, however, is not available to
private individuals under Title III of the ADA.”
Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79,
86 (2d Cir. 2004)
1. Standing
*16 “Article III, Section 2 of the Constitution limits the
jurisdiction of the federal courts to the resolution of ‘cases’
and ‘controversies.’ To ensure that this bedrock case-or-
controversy requirement is met, courts require that plaintiffs
establish their standing as the proper parties to bring suit.”
Sonterra Capital Master Fund Ltd. v. UBS AG, 954 F.3d 529,
533-34 (2d Cir. 2020) (quoting Langan v. Johnson & Johnson
Consumer Cos., 897 F.3d 88, 92 (2d Cir. 2018)). To establish
standing a plaintiff must demonstrate (1) an “injury in fact”
that is “concrete and particularized” and “actual or imminent,
not conjectural or hypothetical,” (2) “a causal connection
between the injury and the conduct complaint of,” and (3)
redressability of the injury by a favorable decision. Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130,
119 L.Ed.2d 351 (1992) (citations omitted). Where “a case
is at the pleading stage, the plaintiff must ‘clearly ... allege
facts demonstrating’ each element.” Spokeo, Inc. v. Robins,
578 U.S. 330, 338, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016)
(quoting Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197,
45 L.Ed.2d 343 (1975)). “For injunctive relief, a plaintiff has
suffered an injury in fact if the plaintiff has alleged past injury
under the ADA and it is reasonable to conclude that, in the
future, the discriminatory treatment would continue and the
plaintiff intended to return to the subject location.” Woods
v. Centro of Oneida, Inc., 103 F.4th 933, 940 (2d Cir. 2024)
(internal quotations and citation omitted).
Plaintiff appears to seek injunctive relief in the form of
“[t]rain[ing] all Defendant's current and future employees
and agents” regarding “discrimination law, both state and
federal.” 18 (Dkt. No. 45, at 103). Here, Plaintiff alleges
that she believed she was subject to disability discrimination
by Dr. Braiman in the neurology department of Glens
Falls Hospital and that she “is afraid to go to any local
hospital” and now “frequently travels out of state for medical
care.” (Dkt. No. 45, ¶¶ 325–326). Liberally construing these
allegations, it is reasonable to infer that Plaintiff would
continue to seek treatment outside the Glens Falls Hospital
neurology department until its staff was properly trained
and the alleged discriminatory practices were eradicated. See
Woods v. Centro of Oneida, Inc., 103 F.4th 933, 940 (2d Cir.
2024) (concluding the plaintiff established standing to seek
injunctive relief against public bus service under Title II of
the ADA, explaining “it is reasonable to infer that Woods
will continue to be deterred as long as Centro's transit system
remains inaccessible, his alleged injury is also sufficient with
respect to his claims for injunctive relief.”). Accordingly,
Defendants’ motion to dismiss for lack of standing is denied.
18 As the Court finds below, however, Plaintiff wholly
fails to plausibly allege disability discrimination
against any party.
2. Individual Defendant
Plaintiff asserts her ADA claims against Dr. Braiman and
the Hospital Defendants. However, as there is no individual
liability under the ADA, see MacPherson v. Eversource
Energy Serv. Corp., No. 19-cv-01569, 2019 WL 13125523,
at *3, 2019 U.S. Dist. LEXIS 241378 (D. Conn. Dec. 10,
2019) (“[M]any cases from this and other circuits have held
that individuals cannot be held personally liable for damages
under the ADA, regardless of which title of the ADA is
at issue.” (quoting Murray v. Tanea, 357 F. Supp. 3d 226,
230 (W.D.N.Y. 2019))), Plaintiff's ADA claims against Dr.
Braiman are dismissed.
3. Hospital Defendants
The Hospital Defendants move to dismiss Plaintiff's ADA
claims for failure to allege disability bias. (Dkt. No. 66-1,
at 17–18). “[A] plaintiff pleads an actionable claim of
discrimination in the medical treatment context under the
ADA ... if she alleges that the defendants made treatment
decisions based on factors that are ‘unrelated to, and thus
improper to consideration of’ the inquiry in question.”
McGugan v. Aldana-Bernier, 752 F.3d 224, 234 (2d Cir.
2014) (quoting United States v. Univ. Hosp., 729 F.2d
144, 156 (2d Cir. 1984)); see also id. at 231 (“[A] doctor
who inflicts or withholds a type of medical treatment for
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reasons having no relevance to medical appropriateness—
reasons dictated by bias rather than medical knowledge—is
practicing the pejorative form of discrimination.”). Although
Plaintiff alleges disability due to Ehlers Danlos Syndrome
and cluster headaches, she does not allege Dr. Braiman
or any other medical provider withheld medical treatment
for reasons dictated by bias on the basis of disability.
Plaintiff alleges that “Dr. Braiman reportedly refused to
prescribe certain treatments based solely on concerns about
potential pregnancy risks, despite the plaintiff's assurances
that pregnancy was not a possibility.” (Dkt. No. 76, at 13).
However, pregnancy does not typically constitute a disability
under the ADA. Sam-Sekur v. Whitmore Grp., Ltd., No. 11-
cv-4938, 2012 WL 2244325, at *7, 2012 U.S. Dist. LEXIS
83586 (E.D.N.Y. June 15, 2012) (citing Leahy v. Gap, Inc.,
07-cv-2008, 2008 WL 2946007, at *5, 2008 U.S. Dist.
LEXIS 58812 (E.D.N.Y. July 29, 2008)). Thus, Plaintiff's
disability claim fails. Accordingly, Defendants’ motion to
dismiss Plaintiff's claim under the ADA (Tenth Cause of
Action) is granted.
J. Negligence (Eleventh Cause of Action) and
Malpractice (Thirteenth Cause of Action) 19
19 As Plaintiff's theories of liability in her negligence
and malpractice causes of action overlap, the Court
considers them together.
*17 Plaintiff sues all Defendants for negligence and
advances several different theories. (Dkt. No. 45, ¶¶ 315–
28, 340–53). Construing the Amended Complaint liberally,
it appears Plaintiff brings: (1) medical malpractice claims
against all Defendants, in connection with her September 14
and 21, 2022 medical treatment, (2) a claim that Kirker, West,
and Calistri breached their duty of confidentiality, violated
Plaintiff's privacy, and failed to protect Plaintiff's private
health information, and (3) a claim that Kirker, West, and
Calistri falsely accused her of “live streaming” leading to
her removal from the emergency department. (Dkt. No. 45,
¶¶ 315–28, 340–53). Defendants move to dismiss Plaintiff's
negligence claim. (Dkt. No. 63-5, at 34–42; Dkt. No. 66-1, at
23–29; Dkt. No. 68-4, at 25). Plaintiff opposes Defendants’
motions. (Dkt. No. 74, at 17–25; Dkt. No. 75, at 14–15; Dkt.
No. 76, at 16–23).
1. Medical Malpractice
Defendants argue that to the extent Plaintiff's negligence
claims arises in the context of her medical care, such claims
can only be asserted as medical malpractice claims. (Dkt. No.
63-5, at 34–35; Dkt. No. 68-4, at 25). “To show negligence
under New York state law, a plaintiff must demonstrate ‘(1)
the defendant owed the plaintiff a cognizable duty of care;
(2) the defendant breached that duty; and (3) the plaintiff
suffered damage as a proximate result.’ ” Ferreira v. City
of Binghamton, 975 F.3d 255, 266 (2d Cir. 2020) (quoting
Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116
(2d Cir. 2006)). However, “[w]hen the duty arises from the
physician-patient relationship or is substantially related to
medical treatment, the breach gives rise to an action sounding
in medical malpractice, not simple negligence.” La Russo
v. St. George's Univ. Sch. of Med., 747 F.3d 90, 101 (2d
Cir. 2014) (quoting Stanley v. Lebetkin, 123 A.D.2d 854,
854, 507 N.Y.S.2d 468 (N.Y. App. Div. 2d Dep't 1986)).
A medical malpractice claim requires a showing of “(1)
a deviation or departure from accepted practice, and (2)
evidence that such departure was a proximate cause of injury
or damage.” Schoolcraft v. City of N.Y., 103 F. Supp. 3d 465,
534 (S.D.N.Y. 2015) (citing Stukas v. Streiter, 83 A.D.3d
18, 23, 918 N.Y.S.2d 176 (N.Y. App. Div. 2d Dep't 2011)).
Because both negligence and medical malpractice claims
require proximate causation and “there is no prohibition
against simultaneously pleading both an ordinary negligence
cause of action and one sounding in medical malpractice,”
the Court need not determine whether the action sounds in
medical malpractice at this time. Jones v. Beth Israel Hosp.,
No. 17-cv-3445, 2018 WL 1779344, at *9, 2018 U.S. Dist.
LEXIS 62228 (S.D.N.Y. Apr. 12, 2018) (collecting cases); see
Gilinsky v. Indelicato, 894 F. Supp. 86, 94 n.5 (E.D.N.Y. 1995)
(finding no need to determine at the summary judgment stage
“whether [the] action [was] more appropriately considered
a medical malpractice action, as opposed to an ordinary
negligence claim”).
As relevant here, Plaintiff alleges Dr. Braiman breached the
standard of care by denying medical treatment on the basis of
age and sex, failing to consider Plaintiff's “wish not to have
children,” deprioritizing Plaintiff's safety, failing to respect
Plaintiff's choice not to have children, and encouraging
Plaintiff not to get an abortion in the event of pregnancy. (Dkt.
No. 45, ¶ 323).
a. Dr. Braiman and Hospital Defendants
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Dr. Braiman argues that because the duty at issue arose from
the medical treatment provided at Plaintiff's September 14,
2022 appointment, “Plaintiff's allegations sound in medical
malpractice and not negligence” and asserts that, in any
event Plaintiff fails to allege facts showing that Dr. Braiman
was negligent or “deviated from an accepted standard of
care.” (Dkt. No. 68-4, at 25–26). The Hospital Defendants
also seek dismissal of any medical malpractice claim. (Dkt.
No. 66-1, at 27). Plaintiff opposes dismissal. (Dkt. No. 75, at
14–15; Dkt. No. 76, at 16–22).
*18 Plaintiff alleges that during her September 14, 2022,
appointment with Dr. Braiman regarding treatment for cluster
headaches, the only treatments Dr. Braiman was willing to
prescribe were those that Plaintiff—as she told Dr. Braiman
—“had already tried and failed,” (Dkt. No. 45, ¶ 60), that
Dr. Braiman “sent in an injectable medication (Aimovig) to
the Plaintiff's pharmacy without her consent or discussing the
risks and benefits of the medication,” (id. ¶ 62), and which
she therefore returned to the pharmacy, (id. ¶ 65), and that
on September 21, 2022, “Plaintiff experienced complications
due to the untreated cluster headaches,” including “crying,
sweating, shaking, and ... heightened blood pressure and
pulse due to the pain,” (id. ¶ 73–74). Viewing Plaintiff's
pro se allegations liberally, the Court concludes that it is
plausible to infer that Dr. Braiman's failure to prescribe
appropriate medication for Plaintiff's cluster headaches, or
obtain informed consent regarding Aimovig, proximately
caused Plaintiff's injuries. See, e.g., Henderson v. Takemoto,
202 N.Y.S.3d 817, 822 (N.Y. App. Div. 3d Dep't 2024)
(denying summary judgment where the plaintiff adduced
evidence showing that the “individual defendants all departed
from the accepted standard of care by failing to prescribe
vitamin C to plaintiff in a timely manner and that such was
a proximate cause of her injuries”); see also Muchler v.
Penwarden, 207 A.D.2d 977, 617 N.Y.S.2d 87, 87 (N.Y. App.
Div. 4th Dep't 1994) (“The allegation that defendant failed
to inform plaintiff of the risks associated with the use of the
prescribed medications ... could support plaintiff's right to
recover for medical malpractice based on a lack of informed
consent.”). The Hospital Defendants argue that Plaintiff fails
to allege how they deviated from the standard of care, (Dkt.
No. 66-1, at 26–27), but accepting as true Plaintiff's allegation
that Dr. Braiman acknowledged that the medications would
be “safe and effective” for her condition, (Dkt. No. 45, ¶
58), but refused to prescribe them, their argument is without
merit. Accordingly, their motion to dismiss Plaintiff's medical
malpractice (negligence) claim is denied.
b. Informed Consent
To the extent Plaintiff also alleges medical malpractice based
on Dr. Braiman's alleged failure to obtain informed consent
before prescribing Aimovig, Defendants argue they are
entitled to dismissal because Plaintiff refused Dr. Braiman's
prescribed treatment. (Dkt. No. 66-1, at 28). The Court agrees.
To establish a “medical malpractice cause of action premised
on lack of informed consent,” a plaintiff must show that
“(1) the practitioner failed to disclose the risks, benefits and
alternatives to the procedure or treatment that a reasonable
practitioner would have disclosed[,] (2) a reasonable person in
the plaintiff's position, fully informed, would have elected not
to undergo the procedure or treatment,” I.M. v. United States,
362 F. Supp. 3d 161, 203 (S.D.N.Y. 2019) (quoting Orphan
v. Pilnik, 15 N.Y.3d 907, 908, 914 N.Y.S.2d 729, 940 N.E.2d
555 (N.Y. 2010)), and “(3) that the lack of informed consent
is a proximate cause of the injury,” Walker v. Saint Vincent
Cath. Med. Centers, 114 A.D.3d 669, 670, 979 N.Y.S.2d 697
(N.Y. App. Div. 2d Dep't 2014); see also N.Y. Pub. Health
Law §§ 2805–d(1), (3). Here, Plaintiff expressly alleges that
she returned the Aimovig and there are no allegations that she
used the “injectable medication” or that she was injured in any
way. (Dkt. No. 45, ¶¶ 62–65). Accordingly, any “informed
consent” claim is dismissed.
c. Kirker, West, Calistri, and Hospital Defendants
Plaintiff alleges that Kirker, West, Calistri, and the Hospital
Defendants breached the duty of care by making false
allegations against her and denying care and treatment in
the emergency department at a point when she was “in
urgent need.” (Dkt. No. 45, ¶¶ 324–25). As the Amended
Complaint is devoid of allegations that Kirker or West
provided medical care to Plaintiff, any negligence claim
based on medical malpractice is dismissed. See Herman
v. Kveton-Cattani, 123 A.D.3d 1093, 1095, 999 N.Y.S.2d
528 (N.Y. App. Div. 2d Dep't 2014) (dismissing medical
malpractice claim where the “plaintiff's factual allegations
failed to state that [the defendant] herself actually rendered
or attempted to render any medical care or treatment to
the plaintiff”). However, construed liberally, Plaintiff's claim
that Calistri discontinued the medication she previously
ordered for Plaintiff, without stabilizing Plaintiff's headache
pain or elevated blood pressure and pulse, are sufficient,
at this stage, to state a claim of medical malpractice.
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Accordingly, Plaintiff's medical and professional malpractice
claims against Kirker and West are dismissed, Defendants’
motions to dismiss Plaintiff's medical malpractice claims are
otherwise denied.
2. Private and Confidential Information
Plaintiff's negligence claim against Kirker and West is
premised on their allegedly improper accessing of her
confidential information and assertion of a false claim
against her leading to her removal from the emergency
department: “Donna Kirker and Lisa West had no right to
access the plaintiff's private health information and used such
protected information to create false allegations against the
plaintiff to get her thrown out of an emergency room mid
treatment.” (Dkt. No. 45, ¶ 326). The Court analyzes this
claim infra section IV.M.
K. Negligence Per Se (Twelfth Cause of Action)
*19 Defendants move to dismiss Plaintiff's negligence per
se claim. Under New York law, “[a] duty of care established
by statute implicates the rule of negligence per se.” Rand
v. Travelers Indem. Co., 637 F. Supp. 3d 55, 71 (S.D.N.Y.
2022) “Under the rule of negligence per se, if a statute is
designed to protect a class of persons, in which the plaintiff
is included, from the type of harm which in fact occurred as
a result of its violation, the issues of the defendant's duty of
care to the plaintiff and the defendant's breach of that duty
are conclusively established upon proof that the statute was
violated.” Id. (quoting German by German v. Fed. Home Loan
Mortg. Corp., 896 F. Supp. 1385, 1396 (S.D.N.Y. 1995)).
Plaintiff responds that Defendants’ violation of HIPAA,
EMTALA, federal criminal statutes, and “a number of state/
common laws” give rise to negligence per se. (Dkt. No. 74, at
26). However, as discussed, HIPAA and the federal criminal
statutes cited in the Amended Complaint do not provide a
private right of action and EMTALA does not provide a
right of action against Plaintiff's individual medical providers.
See Cohen v. Ne. Radiology, P.C., No. 20-cv-1202, 2021
WL 293123, at *7, 2021 U.S. Dist. LEXIS 16497 (S.D.N.Y.
Jan. 28, 2021) (“Indeed, that neither statutory scheme creates
a private right of action weighs heavily against implying
a private right of action necessary to sustain a negligence
per se claim based upon either HIPAA or the FTC Act.”).
Accordingly, Plaintiff's negligence per se claims against Dr.
Braiman, Kirker, West, and Calistri are dismissed.
The Hospital Defendants argue that Plaintiff's negligence
per se claim must be dismissed because Plaintiff “has
not set forth a cause of action against any Defendant for
violation of any statute.” (Dkt. No. 66-1, at 28). However,
the Court has denied the Hospital Defendants’ motion to
dismiss the EMTALA claim, thus their argument is without
merit. Although the Hospital Defendants recite the above-
referenced legal standard, and further argue that Plaintiff has
“failed to articulate how she is among the class of people for
whose benefit any of the statutes mentioned has been enacted,
or how a violation of any named statutes would constitute
negligence per se,” Defendants have not provided any factual
or legal analysis.
Accordingly, Dr. Braiman, Kirker, West, and Calistri's motion
to dismiss Plaintiff's negligence per se claim is granted,
and the Hospital Defendants’ motion to dismiss Plaintiff's
negligence per se claim is denied.
L. Intentional Infliction of Emotional Distress
(Fourteenth Cause of Action)
Plaintiff's intentional infliction of emotional distress (“IIED”)
claim against Defendants is based on her allegations that:
(1) Dr. Braiman's refusal to prescribe safe and effective
treatment for her cluster headaches, leaving her “unable to
find relief from the disabling pain,” and (2) Kirker, West,
and Calistri's false allegations of live streaming, threats of
“security and legal action,” and removal of Plaintiff “from
emergency services while her condition was unstable and
she was in immense pain,” and “harass[ment] ... via social
media,” caused severe emotional distress. (Dkt. No. 45, ¶¶
354–70). Defendants move to dismiss Plaintiff's IIED claim
on the grounds that it is barred by the one-year statute of
limitations and that the Amended Complaint fails to allege
facts showing extreme and outrageous conduct, (Dkt. No.
63-5, at 45–48; Dkt. No. 66-1, at 30–31; Dkt. No. 68-4, at 28–
29).
A claim of intentional infliction of emotional distress under
New York law is subject to a one-year statute of limitations.
Verschleiser v. Frydman, No. 22-cv-7909, 2023 WL 5835031,
at *10, 2023 U.S. Dist. LEXIS 158963 (S.D.N.Y. Sept. 7,
2023) (citing Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478,
836 N.Y.S.2d 509, 868 N.E.2d 189, 197 (N.Y. 2007)). Plaintiff
filed this action on September 29, 2023. (Dkt. No. 1). Thus,
insofar as Plaintiff's IIED claim is based on her September
14, 2022 appointment with Dr. Braiman, or his September
22, 2022 Aimovig prescription, it appears to be barred by the
one-year statute of limitations. Plaintiff asserts that she was
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“informed by Meaghan Ginsberg at the NYS Department of
Health and Human Services Office of Civil Rights that the
statute of limitations for claims against the defendant begin
one year AFTER the complaint is made to the appropriate
state and federal entities at the time the investigation is
closed or concluded, or after 180 days, whichever comes
first.” (Dkt. No. 75, at 17). This appears to be a reference to
the statute of limitations applicable to discrimination claims
subject to administration exhaustion. However, the Second
Circuit has expressly held that, “as a matter of federal law[,]
filing an EEOC charge does not toll the time for filing
state tort claims, including those that arise out of the same
nucleus of facts alleged in the charge of discrimination filed
with the EEOC.” Castagna v. Luceno, 744 F.3d 254, 258
(2d Cir. 2014). Thus, because Plaintiff filed this action on
September 29, 2023, more than one year later, to the extent
Plaintiff's IIED claim is based on Dr. Braiman's alleged
conduct, it is time-barred. Likewise, to the extent Plaintiff's
IIED claim stems from the events arising during her visit
to the Malta Med emergency department on September 21,
2022, it is time-barred. However, Plaintiff additionally alleges
that Calistri contacted Plaintiff's boyfriend on Facebook on
September 30 and October 1, 2022, and disclosed private
health information. As this alleged conduct occurred less than
one-year before the September 29, 2023 action was filed, to
the extent Plaintiff's IIED claim is based on this conduct, it
would not be time-barred.
*20 In New York, “a claim for intentional infliction of
emotional distress requires a showing of (1) extreme and
outrageous conduct; (2) intent to cause, or reckless disregard
of a substantial probability of causing, severe emotional
distress; (3) a causal connection between the conduct and the
injury; and (4) severe emotional distress.” Stuto v. Fleishman,
164 F.3d 820, 827 (2d Cir. 1999). “New York sets a high
threshold for conduct that is ‘extreme and outrageous’ enough
to constitute intentional infliction of emotional distress.”
Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996).
“Whether the alleged conduct is sufficiently outrageous to
satisfy [this element] is a matter of law for a court to decide.”
Baez v. JetBlue Airways, 745 F. Supp. 2d 214, 223 (E.D.N.Y.
2010).
Plaintiff alleges that Calistri sent Facebook messages to
Plaintiff's boyfriend on September 30, 2022 and October 1,
2022, disclosing private medical information about Plaintiff.
(Dkt. No. 45, ¶¶ 96–97). Even assuming this claim is not
duplicative of the breach of confidentiality claim discussed
below, see Fischer v. Maloney, 43 N.Y.2d 553, 402 N.Y.S.2d
991, 373 N.E.2d 1215 (N.Y. 1978) (stating IIED claims may
be dismissed where they “falls well within the ambit of
traditional tort liability” and are in fact duplicates of other
claims put forward); see also Franco v. Diaz, 51 F. Supp.
3d 235, 243–44 (E.D.N.Y. 2014) (“Because precisely the
same conduct and the same injury fall within the ambit of
defendants’ proposed defamation counterclaim, their IIED
counterclaim in the Amended Answer must be dismissed as
duplicative.”), the Court concludes that two messages sent
privately to one individual fail to allow a plausible inference
of extreme and outrageous conduct. See Stuto, 164 F.3d at 827
(explaining that conduct must be “so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized society”); see also Lan Sang v. Ming
Hai, 951 F. Supp. 2d 504, 530 (S.D.N.Y. 2013) (The “ ‘rigor
of the outrageousness standard [for intentional infliction of
emotional distress] is well-established,’ ” and the threshold
is “exceedingly difficult to meet.” (quoting Mesa v. City of
N.Y., No. 09-cv-10464, 2013 WL 31002, at *28, 2013 U.S.
Dist. LEXIS 1097 (S.D.N.Y. Jan. 3, 2013))). Accordingly,
Defendants’ motions to dismiss Plaintiff's IIED claim are
granted.
M. Invasion of Privacy/Breach of Confidentiality
(Fifteenth Cause of Action)
Plaintiff sues Kirker, West, Calistri, and the Hospital
Defendants for invasion of privacy. Specifically, Plaintiff
claims Kirker and West engaged in “intrusion upon seclusion”
by accessing her private health information and that Calistri
invaded her privacy by posting Plaintiff's private information
on social media. (Dkt. No. 45, ¶¶ 377–78). Plaintiff also
asserts her invasion of privacy claim against the Hospital
Defendants. (Id. ¶ 378). Defendants move to dismiss
Plaintiff's invasion of privacy claim.
As New York has “no common law right of privacy,”
Plaintiff's “intrusion upon seclusion” claim is dismissed. See
Hamlett v. Santander Consumer USA Inc., 931 F. Supp.
2d 451, 457 (E.D.N.Y. 2013) (“New York has consistently
refused to recognize a common law right of privacy, and
hence there is no cause of action of intrusion upon seclusion
under New York law.”). In New York, “the right to privacy is
governed exclusively by sections 50 and 51 of the Civil Rights
Law.” Howell v. New York Post Co., 81 N.Y.2d 115, 123,
596 N.Y.S.2d 350, 612 N.E.2d 699 (N.Y. 1993). “Section 50
prohibits the use of a living person's name, portrait or picture
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for ‘advertising’ or ‘trade’ purposes without prior written
consent.” 20 Id. No such allegations are present in this case.
20 “Section 50 provides criminal penalties and section
51 a private right of action for damages and
injunctive relief.” Howell, 81 N.Y.2d at 123, 596
N.Y.S.2d 350, 612 N.E.2d 699 (citing N.Y. Civ.
Rights Law §§ 50–51).
*21 However, construing Plaintiff's allegations liberally to
raise the strongest claims they suggest, it appears Plaintiff
is attempting to assert that Kirker, West, Calistri, and the
Hospital Defendants violated the physician-patient privilege,
codified under New York law by section 4504 of the New
York Civil Practice Law and Rules. Section 4505(a) provides:
“Unless the patient waives the privilege, a person authorized
to practice medicine ... shall not be allowed to disclose any
information which he acquired in attending a patient in a
professional capacity, and which was necessary to enable him
to act in that capacity.” N.Y. C.P.L.R. § 4504(a). The Court of
Appeals of New York has explained that:
The privilege applies not only to
information orally communicated by
the patient, but also to information
ascertained by observing the patient's
appearance and symptoms, unless
those factual observations would be
obvious to lay observers. Generally,
the privilege covers all information
relating to the nature of the treatment
rendered and the diagnosis made.
Although not covered by the statute,
information obtained in a professional
capacity but not necessary to enable
the physician to fulfill his or
her medical role is a protected
confidence, the disclosure of which
constitutes professional misconduct in
the absence of patient consent or legal
authorization.
Chanko v. Am. Broad. Cos. Inc., 27 N.Y.3d 46, 53, 49
N.E.3d 1171 (N.Y. 2016) (internal citations and quotation
marks omitted). To allege “breach of physician-patient
confidentiality,” a plaintiff must allege:
(1) the existence of a physician-
patient relationship; (2) the physician's
acquisition of information relating to
the patient's treatment or diagnosis;
(3) the disclosure of such confidential
information to a person not connected
with the patient's medical treatment, in
a manner that allows the patient to be
identified; (4) lack of consent for that
disclosure; and (5) damages.
Chanko, 27 N.Y.3d at 53–54, 49 N.E.3d 1171.
Plaintiff alleges that Kirker, the “Chief Nursing Officer
of Glens Falls Hospital,” called West, the “Administrative
Director of Emergency Services” and also the “Chief Nursing
Officer” of Saratoga Hospital, to say that Plaintiff “was live
streaming,” and that West relayed this information to an
administrator at Malta Med, who relayed it to a “Charge
Nurse” at Malta Med. (Id. ¶¶ 5–6, 83). The recording
Plaintiff submitted as an exhibit to the Amended Complaint
suggests that Kirker, West, or employees at Malta Med used
a “tracker” to find Plaintiff and her room number and then
disclosed that information, which ultimately reached Calistri
and Plaintiff. (Dkt. No. 45, ¶ 85; id. at 144 (Exh. V)).
Kirker seeks dismissal on the ground that she “acted within
the bounds of patient privacy regulations” because neither
Plaintiff's “live streaming” nor Plaintiff's room number at
Malta Med constituted “private health information” and her
alleged “disclosure” of this information to West at Saratoga
Hospital was “from one covered entity to another” and made
pursuant to the “operations exception.” (Dkt. No. 66-1, at
25 & n.6 (asserting that “when a hospital administrator
receives a report about an issue with someone who is
possibly a patient in the hospital, the operations exception
allows the administrator to look up where that person is
to address the problem.” (citing 45 C.F.R. § 164.506(c)))).
West seeks dismissal on the ground that she conveyed the
information at issue “to the people personally connected to
the plaintiff's diagnosis and treatment” at Malta Med. (Dkt.
No. 63-5, at 39). 45 C.F.R. § 164.506 governs “uses and
disclosures” of “protected health care information” “to carry
out treatment, payment or health care operations.” While §
164.506(c) details four instances in which a “covered entity”
may “disclose protected health information,” no party has
briefed the definition of these terms, or the applicability of
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any of these provisions here. The Court therefore declines
to dismiss Plaintiff's breach of confidentiality claim at this
juncture. Further, although West asserts she only disclosed
Plaintiff's information to the people personally connected to
the Plaintiff's treatment at Malta Med, the allegations before
the Court do not indicate who West spoke with at Malta
Med. (Dkt. No. 45, at 115) (patient record with notation by
“Smith, Erin, RN” that “Lisa West called in regards to a
patient live streaming in our facility gave the patients name
and room number. Writer was informed that Lisa got a call
from Glens Falls.”). Accordingly, absent further briefing, the
Court declines to dismiss on these grounds.
*22 Plaintiff alleges that Calistri's September 30
and October 1, 2022 Facebook messages to Plaintiff's
boyfriend regarding Plaintiff's September 21, 2022 visit
to the emergency department violated physician-patient
confidentiality. Calistri only challenges the third and fourth
elements—whether Plaintiff has alleged the disclosure of
confidential information and whether Plaintiff adequately
alleges the lack of consent for that disclosure. Specifically,
Calistri argues that the information at issue was contained
in a “private FB message” to Plaintiff's boyfriend, she
did not discuss Plaintiff's “health information such as her
diagnosis or the specific care she received,” and, in any event,
that there was “nothing in either of these messages which
defendant Calistri sent privately to” Plaintiff's boyfriend “that
plaintiff had not previously disclosed in a” September 23,
2022 TikTok post. (Dkt. No. 63-5, at 40). In the messages
at issue, Calistri referred to “Tara” and “your girlfriend,”
thus disclosing Plaintiff's identity and status as a patient to
Plaintiff's boyfriend. (Dkt. No. 45, at 120). Further, Calistri
allegedly disclosed to Plaintiff's boyfriend that Plaintiff
received “care in Glens Falls,” that Calistri was Plaintiff's
“nurse practitioner,” that she “did everything [she] knew to
help [Plaintiff] feel better,” and that Plaintiff “was taken care
of and got everything she requested and needed while under
my care on September 21st.” (Id. at 120–21, 596 N.Y.S.2d
350, 612 N.E.2d 699). While these statements may be viewed
as non-specific, construed liberally, they refer to Plaintiff's
treatment by Calistri on September 21, 2022, and thus
allow a plausible inference that Calistri disclosed information
regarding Plaintiff's treatment to Plaintiff's boyfriend, “a
person not connected with [Plaintiff's] medical treatment.”
Although Calistri argues that Plaintiff herself previously
disclosed the same information publicly on social media,
the facts (and scope) of the alleged prior disclosure are
outside the Amended Complaint. Thus, Calistri's waiver
argument is unavailing at this stage of the litigation. 21
The Court observes, however, that voluntary disclosure may,
in some instances, constitute waiver. See, e.g., Liverano v.
Devinsky, 278 A.D.2d 386, 387, 717 N.Y.S.2d 629 (N.Y. App.
Div. 2d Dep't 2000) (concluding that “the physician-patient
privilege was waived when [the patient] voluntarily disclosed
the nature and extent of his glaucoma to members of the
media, which resulted in the subsequent publication of his
condition”).
21 Calistri has attached a “Sep 23” screenshot of a
social media post by Plaintiff. (Dkt. No. 63-4).
However, this document contains material outside
the Amended Complaint and the Court declines
to consider it. To the extent Calistri points to
Plaintiff's boyfriend's Google review, there are no
allegations that Plaintiff herself wrote or authorized
that review.
Accordingly, Defendants’ motion to dismiss Plaintiff's breach
of confidentiality claim is denied.
N. Harassment (Sixteenth Cause of Action)
Kirker, West, Calistri, Albany Med, Malta Med, and Saratoga
Hospital move to dismiss Plaintiff's harassment claim on the
ground that New York does not recognize a common law
harassment claim. (Dkt. No. 63-5, at 60 (citing Hartman v.
536/540 E. 5th St. Equities, 19 A.D.3d 240, 797 N.Y.S.2d 73
(N.Y. App. Div. 1st Dep't 2005)) Dkt. No. 63-5, at 50; Dkt.
No. 66-1, at 29). Plaintiff opposes dismissal. (Dkt. No. 74, at
31–32; Dkt. No. 76, at 24). “New York does not recognize a
common-law cause of action alleging harassment[.]” Nolan
v. Cnty. of Erie, No. 19-cv-01245, 2020 WL 1969329, at
*9, 2020 U.S. Dist. LEXIS 72729 (W.D.N.Y. Apr. 24, 2020)
(quoting Mago, LLC v. Singh, 47 A.D.3d 772, 773, 851
N.Y.S.2d 593 (N.Y. App. Div. 2d Dep't 2008)). Accordingly,
Defendants’ motions to dismiss Plaintiff's harassment claim
is granted.
O. Negligent Infliction of Emotional Distress
(Seventeenth Cause of Action)
Plaintiff's negligent infliction of emotional distress claim
against Defendants is premised on: (1) Dr. Braiman's
allegedly discriminatory conduct during the September 14,
2022 appointment and alleged failure to provide adequate
treatment and obtain informed consent for the Aimovig
prescription; and (2) Kirker, West, and Calistri's allegedly
false accusations of “live streaming,” discharge of Plaintiff
from the emergency department based on false information,
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and provision of false and forged documents to Plaintiff's
insurance company. (Dkt. No. 45, ¶¶ 391–97). Defendants
move to dismiss on the grounds that Plaintiff fails to allege
sufficient facts to show a direct duty or to “satisfy the
necessary damages elements” of a negligent infliction of
emotional distress claim. (Dkt. No. 63-2, at 51; Dkt. No.
66-1, at 25–26; Dkt. No. 68-4, at 29–30). Plaintiff opposes
Defendants’ motions. (Dkt. No. 74, at 32–33; Dkt. No. 75, at
18–20; Dkt. No. 76, at 16–23).
“To plead a negligent infliction of emotional distress claim
under New York law, a plaintiff must allege (1) a breach of
a duty owed to the plaintiff; (2) emotional harm; (3) a direct
causal connection between the breach and the emotional
harm; and (4) circumstances providing some guarantee of
genuineness of the harm.” Francis v. Kings Park Manor, Inc.,
992 F.3d 67, 81 (2d Cir. 2021).
A plaintiff may establish a claim for negligent infliction of
emotional distress under “(1) the bystander theory,” which
is inapplicable here as it typically involves witnessing harm
to a close family member, “or (2) the direct duty theory,”
which allows a plaintiff to recover for emotional injury
caused by a defendant's breach of a duty which “unreasonably
endangered” the plaintiff's physical safety. Baker v. Dorfman,
239 F.3d 415, 421 (2d Cir. 2000). Under both theories, the
duty owed “must be specific to the plaintiff, and not some
amorphous, free-floating duty to society.” Truman v. Brown,
434 F. Supp. 3d 100, 123 (S.D.N.Y. 2020) (quoting Mortise
v. United States, 102 F.3d 693, 696 (2d Cir. 1996)). As
stated, “[b]oth theories require ‘physical injury or the threat of
danger, either to the plaintiff ... or to a close family member.’
” Green v. City of Mount Vernon, 96 F. Supp. 3d 263, 298
(S.D.N.Y. 2015) (quoting Vaughn v. Am. Multi Cinema, Inc.,
No. 09-cv-8911, 2010 WL 3835191, at *5, 2010 U.S. Dist.
LEXIS 96609 (S.D.N.Y. Sept. 13, 2010)); see also Tigano v.
United States, 527 F. Supp. 3d 232, 249 (E.D.N.Y. 2021)
*23 The “guarantee of genuineness” element “requires a
specific, recognized type of negligence that obviously has
the propensity to cause extreme emotional distress such as
the mishandling of a corpse or the transmission of false
information that a parent or child had died.” Selvam v.
United States, 570 F. Supp. 3d 29, 50 (E.D.N.Y. 2021)
(quotation marks omitted) (quoting J.H. v. Bratton, 248 F.
Supp. 3d 401, 416 (E.D.N.Y. 2017)), aff'd, No. 21-2513-
cv, 2022 WL 6589550, 2022 U.S. App. LEXIS 28208 (2d
Cir. Oct. 11, 2022). “Alternatively, the breach ‘must have at
least endangered the plaintiff's physical safety or caused the
plaintiff to fear for his or her own safety.’ ” Selvam, 570 F.
Supp. 3d at 50 (quotation marks omitted) (quoting Bratton,
248 F. Supp. 3d at 416). “[B]y mandating some guarantee of
the genuineness of the emotional injury, the Court of Appeals
has recognized a standard that is effective to filter out petty
and trivial complaints and to ensure that the alleged emotional
distress is real.” Taggart v. Costabile, 131 A.D.3d 243, 253
(App. Div. 2d Dep't 2015).
To the extent Plaintiff's claim is based on Dr. Braiman's
alleged failure to treat her cluster headaches, and Calistri's
allegedly premature discharge of her from the emergency
department, they are duplicative of her medical malpractice
claims. Virgil v. Darlak, No. 10-cv-6479, 2013 WL 4015368,
at *10, 2013 U.S. Dist. LEXIS 110411 (W.D.N.Y. Aug.
6, 2013) (dismissing the plaintiff's negligent infliction of
emotional distress claim as duplicative of his medical
malpractice claim, explaining that “[a] claim for negligent
infliction of emotional distress cannot be asserted if it
is ‘essentially duplicative of tort or contract causes of
action.’ ”). Further, none of Plaintiff's remaining allegations
against Dr. Braiman, including his discriminatory treatment
and prescription of Aimovig, which she returned, allow a
plausible inference that Dr. Braiman engaged in conduct that
endangered Plaintiff's physical safety or caused Plaintiff to
fear for her physical safety. Nor is it plausible to infer that
Kirker, West, and Calistri's allegedly false accusations of
“live streaming,” the presence of “armed security” outside
Plaintiff's hospital room, or Calistri's alleged provision of
false and forged documents to Plaintiff's insurance company
endangered Plaintiff's physical safety or caused her to fear
for her physical safety. (Dkt. No. 45, ¶¶ 391–97). See Hecht
v. Kaplan, 221 A.D.2d 100, 105, 645 N.Y.S.2d 51 (App.
Div. 2d Dep't 1996) (“Since the plaintiff ... is seeking to
recover solely for emotional harm, unaccompanied by any
form of physical trauma, and has not alleged any physical
harm, there is no cause of action to recover damages for the
negligent infliction of emotional distress.”). Thus, Plaintiff
fails to state a negligent infliction of emotional distress claim
against Defendants.
Accordingly, Defendants’ motion to dismiss Plaintiff's claim
of negligent infliction of emotional distress is granted.
V. CONCLUSION
For these reasons, it is hereby
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ORDERED that Defendants’ motions to dismiss (Dkt. Nos.
63, 66, 68) are GRANTED in part and DENIED in part as
follows: 22
• Plaintiff's Affordable Care Act Claim (First Cause
of Action), against the individual Defendants and to
the extent it seeks emotional and punitive damages
is DISMISSED with prejudice. Plaintiff's Affordable
Care Act Claim against the Hospital Defendants may
otherwise proceed.
• Plaintiff's Title II and Title IX claims (Second Cause
of Action) is DISMISSED without prejudice as to all
Defendants.
• Plaintiff's Age Discrimination Act claim (Third Cause
of Action) is DISMISSED without prejudice as to all
Defendants.
• Plaintiff's Patient Self-Determination Act claim (Fourth
Cause of Action) is DISMISSED with prejudice as to
all Defendants.
*24 • Plaintiff's claims under the Federal Criminal
Statutes (Fifth, Seventh, and Ninth Causes of Action) are
DISMISSED with prejudice as to all Defendants.
• Plaintiff's HIPAA (Sixth Cause of Action) is
DISMISSED with prejudice as to all Defendants.
• Plaintiff's claim under 42 U.S.C. § 1983 (Seventh Cause
of Action) is DISMISSED without prejudice as to all
Defendants.
• Plaintiff's EMTALA claim (Eighth Cause of Action)
is DISMISSED with prejudice as to the individual
Defendants but may proceed as to the Hospital
Defendants.
• Plaintiff's Americans with Disabilities Act claim (Tenth
Cause of Action) against Dr. Braiman is DISMISSED
with prejudice and is DISMISSED without prejudice
as to the Hospital Defendants.
• Plaintiff's Medical Malpractice claims (as alleged
in her Eleventh and Thirteenth Causes of Action)
against Dr. Braiman, Calistri, and Hospital Defendants
may proceed. Plaintiff's negligence claim is otherwise
DISMISSED without prejudice.
• Plaintiff's Negligence per se claim (Twelfth Cause of
Action) is DISMISSED without prejudice as to Dr.
Braiman, Kirker, West, and Calistri.
• Plaintiff's Intentional Infliction of Emotional Distress
claim (Fourteenth Cause of Action) is DISMISSED
without prejudice.
• Plaintiff's Invasion of Privacy (Breach of Confidentiality)
claim (Fifteenth Cause of Action) is DISMISSED
without prejudice as to Plaintiff's claim of intrusion
upon seclusion but her claims based on breach of
confidentiality may proceed.
• Plaintiff's Harassment claim (Sixteenth Cause of Action)
is DISMISSED with prejudice.
• Plaintiff's Negligent Infliction of Emotional Distress
(Seventeenth Cause of Action) is DISMISSED without
prejudice.
22 Should Plaintiff seek to pursue a claim that the
Court has dismissed without prejudice she must
seek leaved to file an amended complaint by filing a
motion to amend the complaint in accordance with
Federal Rule of Civil Procedure 15 and Local Rule
15.1.
Thus, as outlined above, the following claims proceed:
Plaintiff's Affordable Care Act claim (First Cause of Action)
against the Hospital Defendants, Plaintiff's EMTALA claim
(Eighth Cause of Action) against the Hospital Defendants,
Plaintiff's negligence (medical malpractice) claim (Eleventh
and Thirteenth Causes of Action) against Dr. Braiman,
Calistri, and the Hospital Defendants, Plaintiff's negligence
per se claim (Twelfth Cause of Action) against the Hospital
Defendants, and Plaintiff's breach of confidence claims
(Fifteenth Cause of Action) against the Hospital Defendants,
Calistri, West, and Kirker.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 4042135
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Fisher v. Glens Falls Hospital, Slip Copy (2025)
2025 WL 2324128
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 2324128
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Curtis Dijon FISHER, Plaintiff,
v.
GLENS FALLS HOSPITAL, Glens
Falls Hospital CEO/President, and Glens
Falls Police Department, Defendants.
1:25-CV-831 (AJB/DJS)
|
Signed July 15, 2025
Attorneys and Law Firms
CURTIS DIJON FISHER, Plaintiff, Pro Se, 21085, Warren
County Correctional Facility, 1400 State Route 9, Lake
George, New York 12845.
REPORT-RECOMMENDATION and ORDER
DANIEL J. STEWART, United States Magistrate Judge
*1 The Clerk has forwarded for review what has been
docketed as a civil complaint filed by Plaintiff. Dkt. No. 1,
Compl. Plaintiff has not paid the filing fee, but has submitted
an application to proceed in forma pauperis (“IFP”), Dkt. No.
2, which the Court has granted.
I. FACTUAL ALLEGATIONS
The Complaint is brought pursuant to 42 U.S.C. § 1983,
alleging violation of Plaintiff's constitutional rights. Compl.
at p. 3. Specifically, Plaintiff alleges violation of his rights
under the First, Fourth, Sixth, Eighth, Tenth, and Fourteenth
Amendments. Id. at p. 6. He also appears to be asserting a
state law claim for medical malpractice. Id. at p. 2.
Plaintiff alleges that in July 2023 he suffered gunshot wounds.
Id. at p. 6. Instead of immediately providing medical care, the
Complaint alleges that detectives with the Glens Falls Police
Department improperly questioned him about the incident for
hours. Id. Plaintiff claims that he suffered injury at Glens
Falls Hospital when his wound was merely stitched without
removing bullet fragments. Id. at pp. 1 & 6. He claims he had
to seek relief at another hosiptal at a later date for follow-up
treatment. Id. at p. 6.
II. SUFFICIENCY OF THE COMPLAINT
A. Governing Legal Standard
28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to
proceed in forma pauperis, “(2) ... the court shall dismiss
the case at any time if the court determines that – ... (B)
the action ... (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B). 1 Thus, even if a plaintiff meets the
financial criteria to commence an action in forma pauperis, it
is the court's responsibility to determine whether the plaintiff
may properly maintain the complaint that he filed in this
District before the court may permit the plaintiff to proceed
with this action in forma pauperis. See id.
1 To determine whether an action is frivolous, a court
must look to see whether the complaint “lacks an
arguable basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989).
Likewise, under 28 U.S.C. § 1915A, a court must review
any “complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of
a governmental entity” and must “identify cognizable claims
or dismiss the complaint, or any portion of the complaint,
if the complaint ... is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or ... seeks monetary
relief from a defendant who is immune from such relief.” 28
U.S.C. § 1915A; see also Carr v. Dvorin, 171 F.3d 115, 116
(2d Cir. 1999) (per curiam); Abbas v. Dixon, 480 F.3d 636,
639 (2d Cir. 2007) (stating that both sections 1915 and 1915A
are available to evaluate pro se prisoner complaints).
In reviewing a pro se complaint, the court has a duty to show
liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d
605, 606 (2d Cir. 1990) (per curiam), and should exercise
“extreme caution ... in ordering sua sponte dismissal of a
pro se complaint before the adverse party has been served
and both parties (but particularly the plaintiff) have had an
opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37,
41 (2d Cir. 1983) (internal citations omitted). Therefore, a
court should not dismiss a complaint if the plaintiff has stated
“enough facts to state a claim to relief that is plausible on its
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Fisher v. Glens Falls Hospital, Slip Copy (2025)
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© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
*2 Although a court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that
a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” Id.
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
(citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged - but it has not show[n] - that the pleader is entitled
to relief.” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
Rule 8 of the Federal Rules of Civil Procedure “demands
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell
Atl. Corp. v. Twombly, 550 U.S. at 555). Thus, a pleading
that only “tenders naked assertions devoid of further factual
enhancement” will not suffice. Id. (internal quotation marks
and alterations omitted).
B. Analysis of the Complaint
1. Section 1983
Upon review, all of Plaintiff's section 1983 claims should be
dismissed.
First, claims against the Glens Falls Police Department should
be dismissed. “A city police department is not an independent,
suable entity separate from the municipality in which the
police department is organized.” Krug v. Cty. of Rennselaer,
559 F. Supp. 2d 223, 247 (N.D.N.Y. 2008). As a result, claims
against that entity must be dismissed.
Next, Section 1983 claims against Glens Falls Hospital and
its President should be dismissed based on the lack of state
action. “Because the United States Constitution regulates
only the Government, not private parties, a litigant claiming
that his constitutional rights have been violated must first
establish that the challenged conduct constitutes state action.”
Flagg v. Yonkers Sav. & Loan Ass'n, FA, 396 F.3d 178,
186 (2d Cir. 2005) (internal quotation marks omitted). “A
plaintiff pressing a claim of violation of his constitutional
rights under § 1983 is thus required to show state action.”
Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir.
2003). “State action requires both the exercise of some right
or privilege created by the State and the involvement of a
person who may fairly be said to be a state actor.” Meadows v.
United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020) (quoting
Flagg v. Yonkers Sav. & Loan Ass'n, FA, 396 F.3d at 186)
(internal quotations and alterations omitted). Plaintiff has
failed to make any allegations establishing that either of these
Defendants are state actors.
“In general, a private hospital will not be considered a state
actor.” Rule v. Braiman, 2024 WL 4042135, at *13 (N.D.N.Y.
Sept. 4, 2024) (internal quotation omitted). While private
parties, such as the Hospital and its President generally are
not state actors, their conduct can be attributed to the state for
section 1983 purposes if “(1) the State compelled the conduct,
(2) there is a sufficiently close nexus between the State and
the private conduct, or (3) the private conduct consisted of
activity that has traditionally been the exclusive prerogative of
the State.” Hogan v. A.O. Fox Mem'l Hosp., 346 F. App'x 627,
629 (2d Cir. 2009). The activities of private hospitals and their
officers typically do not satisfy any of these tests. Id.; Rule v.
Braiman, 2024 WL 4042135, at *13. “[P]laintiff's complaint
contains no allegations that defendant Glens Falls Hospital is
a state actor. Since it is the duty of the plaintiff to allege state
action on the part of the defendant named in a complaint, a
court may dismiss an action under 28 U.S.C. § 1915(e) where
a plaintiff fails to plead such a nexus.” Denes v. Glens Falls
Hosp., 2005 WL 2033489, at *2 (N.D.N.Y. Aug. 17, 2005).
Accordingly, the Court recommends that the section 1983
claims asserted here be dismissed.
2. State Law Claims
*3 Liberally construed, the Complaint also asserts claims for
medical malpractice. That claim should also be dismissed at
this juncture based on a lack of subject matter jurisdiction.
“[A] medical malpractice claim is a state law claim that
is neither created by federal law nor necessarily depends
on the resolution of a substantial question of federal law.”
Gilmore for Gilmore v. Rensselaer Cnty. Med. Exam'r, 2022
WL 1985664, at *4 (N.D.N.Y. June 3, 2022), report and
recommendation adopted, 2022 WL 2827514 (N.D.N.Y. July
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© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
20, 2022) (internal quotations omitted). Thus, this Court has
jurisdiction only if there is diversity of citizenship.
“Diversity jurisdiction exists where the parties are citizens
of different states and the amount in controversy exceeds
$75,000.” Ceglia v. Zuckerberg, 772 F. Supp. 2d 453, 455
(W.D.N.Y. 2011). “A case falls within the federal district
court's original diversity jurisdiction only if diversity of
citizenship among the parties is complete, i.e., only if there
is no plaintiff and no defendant who are citizens of the same
State.” Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381,
388 (1998) (internal quotations omitted). Complete diversity
is required – meaning if any Defendant is a resident of the
same state as the Plaintiff, diversity jurisdiction does not exist.
Seemann v. Maxwell, 178 F.R.D. 23, 24 (N.D.N.Y. 1998).
The Complaint specifically alleges that both Plaintiff and
Defendants are residents of New York. Compl. at pp. 4-5. As a
result, there is also no diversity jurisdiction in this case and no
independent jurisdictional basis for entertaining these claims.
A district court may decline to exercise supplemental
jurisdiction over state law claims when it “has dismissed all
claims over which it has original jurisdiction.” 28 U.S.C.
§ 1367(c)(3). Generally, “when the federal-law claims have
dropped out of the lawsuit in its early stages and only
state-law claims remain, the federal court should decline the
exercise of jurisdiction.” Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 350 (1988). Having recommended dismissal
of the federal claims over which the Court has original
jurisdiction, the Court also recommends that the District
Court decline to exercise its supplemental jurisdiction over
any state law claims Plaintiff may be asserting.
3. Leave to Amend
“[A] court should not dismiss a complaint filed by a pro se
litigant without granting leave to amend at least once ‘when
a liberal reading of the complaint gives any indication that a
valid claim might be stated.’ ” Bruce v. Tompkins Cty. Dep't of
Soc. Servs. ex rel. Kephart, 2015 WL 151029, at *4 (N.D.N.Y.
Jan. 7, 2015) (quoting Branum v. Clark, 927 F.2d 698, 704-05
(2d Cir. 1991)). Accordingly, the Court recommends that the
Complaint be dismissed, but that Plaintiff be afforded an
opportunity to amend.
The Court advises Plaintiff that should he be permitted to
amend his Complaint, any amended pleading he submits
must comply with Rules 8 and 10 of the Federal Rules
of Civil Procedure. Any such amended complaint, which
shall supersede and replace in its entirety the previous
Complaint filed by Plaintiff, must contain sequentially
numbered paragraphs containing only one act of
misconduct per paragraph. Thus, if Plaintiff claims that
his civil and/or constitutional rights were violated by more
than one defendant, or on more than one occasion, he should
include a corresponding number of paragraphs in his amended
complaint for each such allegation, with each paragraph
specifying (i) the alleged act of misconduct; (ii) the date,
including the year, on which such misconduct occurred; (iii)
the names of each and every individual who participated in
such misconduct; (iv) where appropriate, the location where
the alleged misconduct occurred; and, (v) the nexus between
such misconduct and Plaintiff's civil and/or constitutional
rights.
*4 Plaintiff is further cautioned that no portion of his prior
Complaint shall be incorporated into his amended complaint
by reference. Any amended complaint submitted by Plaintiff
must set forth all of the claims he intends to assert against the
defendants and must demonstrate that a case or controversy
exists between the Plaintiff and the defendants which Plaintiff
has a legal right to pursue and over which this Court has
jurisdiction. If Plaintiff is alleging that the named defendant
violated a law, he should specifically refer to such law.
III. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Plaintiff's Complaint be
DISMISSED with leave to amend; and it is
ORDERED, that the Clerk of the Court serve a copy of this
Report-Recommendation and Order upon the parties to this
action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
(14) 2 days within which to file written objections to the
foregoing report. Such objections shall be filed with the Clerk
of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN (14) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993) (citing Small v. Sec'y of Health and Human
Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §
636(b)(1); FED. R. CIV. P. 72 & 6(a).
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Fisher v. Glens Falls Hospital, Slip Copy (2025)
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© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
2 If you are proceeding pro se and are served with
this Order by mail, three additional days will be
added to the fourteen-day period, meaning that you
have seventeen days from the date the order was
mailed to you to serve and file objections. FED. R.
CIV. P. 6(d). If the last day of that prescribed period
falls on a Saturday, Sunday, or legal holiday, then
the deadline is extended until the end of the next
day that is not a Saturday, Sunday, or legal holiday.
FED. R. CIV. P. 6(a)(1)(C).
All Citations
Slip Copy, 2025 WL 2324128
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-01789-BKS-CBF Document 6 Filed 04/17/26 Page 74 of 138

Fisher v. Glens Falls Hospital, Slip Copy (2025)
2025 WL 2323523
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 2323523
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Curtis Dijon FISHER, Plaintiff,
v.
GLENS FALLS HOSPITAL et al., Defendants.
1:25-CV-831 (AJB/DJS)
|
Signed August 12, 2025
Attorneys and Law Firms
CURTIS DIJON FISHER, Plaintiff, Pro Se, 21085, Warren
County Correctional Facility, 1400 State Route 9, Lake
George, NY 12845.
ORDER ON REPORT & RECOMMENDATION
Anthony Brindisi, United States District Judge:
*1 On June 26, 2025, pro se plaintiff Curtis Dijon Fisher
(“plaintiff”), who is currently being detained in the Warren
County Correctional Facility, filed this 42 U.S.C. § 1983
action alleging that defendants violated his civil rights. Dkt.
No. 1. Along with his complaint, plaintiff moved for leave to
proceed in forma pauperis (“IFP Application”). Dkt. No. 2, 3.
On July 15, 2025, U.S. Magistrate Judge Daniel J. Stewart
granted plaintiff's IFP Application, Dkt. No. 4, and conducted
an initial review of plaintiff's pleading. Based on this initial
review, Judge Stewart advised by Report & Recommendation
(“R&R”) that plaintiff's complaint be dismissed with leave to
amend. Dkt. No. 5.
Plaintiff has not lodged objections to the R&R. The time
period in which to do so has expired. However, plaintiff has
submitted a First Amended Complaint in accordance with
the R&R. Dkt. No. 6. Upon review for clear error, the R&R
will be accepted and adopted, see FED. R. CIV. P. 72(b), and
plaintiff's First Amended Complaint will be referred to Judge
Stewart for further action as appropriate.
Therefore, it is
ORDERED that
1. The Report & Recommendation (Dkt. No. 5) is
ACCEPTED; and
2. Plaintiff's complaint (Dkt. No. 1) is DISMISSED with leave
to amend; and
3. Plaintiff's First Amended Complaint (Dkt. No. 6) is
REFERRED to Judge Stewart.
The Clerk of the Court is directed to terminate the pending
motion and refer the First Amended Complaint (Dkt. No. 6)
to the assigned Magistrate Judge for further action.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 2323523
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Guillory v. Bishop Nursing Home, Not Reported in Fed. Supp. (2021)
2021 WL 1535474
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 1535474
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Patrick GUILLORY, Plaintiff,
v.
BISHOP NURSING HOME, Defendant.
5:21-CV-410 (MAD/ATB)
|
Signed 04/19/2021
Attorneys and Law Firms
PATRICK GUILLORY, Plaintiff, pro se.
ORDER and REPORT-RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge
*1 The Clerk has sent to the court for review a complaint
brought pursuant to 42 U.S.C. § 1983, filed by plaintiff Patrick
Guillory. (Dkt. No. 1) (“Compl.”). Plaintiff has also moved to
proceed in forma pauperis (“IFP”). (Dkt. No. 2).
I. IFP Application
Plaintiff declares in his IFP application that he is unable to pay
the filing fee. (Dkt. No. 2). After reviewing his application,
this court finds that plaintiff is financially eligible for IFP
status.
However, in addition to determining whether plaintiff meets
the financial criteria to proceed IFP, the court must also
consider the sufficiency of the allegations set forth in the
complaint in light of 28 U.S.C. § 1915, which provides that
the court shall dismiss the case at any time if the court
determines that the action is (i) frivolous or malicious; (ii)
fails to state a claim on which relief may be granted; or (iii)
seeks monetary relief against a defendant who is immune
from such relief. 28 U.S.C. § 1915 (e)(2)(B)(i) -(iii).
In determining whether an action is frivolous, the court must
consider whether the complaint lacks an arguable basis in law
or in fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct.
1827, 104 L.Ed.2d 338 (1989). Dismissal of frivolous actions
is appropriate to prevent abuses of court process as well as
to discourage the waste of judicial resources. Neitzke, 490
U.S. at 327, 109 S.Ct. 1827; Harkins v. Eldridge, 505 F.2d
802, 804 (8th Cir. 1974). Although the court has a duty to
show liberality toward pro se litigants, and must use extreme
caution in ordering sua sponte dismissal of a pro se complaint
before the adverse party has been served and has had an
opportunity to respond, the court still has a responsibility
to determine that a claim is not frivolous before permitting
a plaintiff to proceed. Fitzgerald v. First East Seventh St.
Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that
a district court may dismiss a frivolous complaint sua sponte
even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint
must contain sufficient factual matter, accepted as true, to
state a claim that is “plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Bell Atl.
Corp., 550 U.S. at 555, 127 S.Ct. 1955).
II. Complaint
Plaintiff alleges that Bishop 1 “is operating a dangerous
establishment.” (Compl. at 2). Specifically, he complains that
the “call bell in the restroom do[es] not work and patients have
to wait an hour” or more for assistance from a nurse. (Id.).
Plaintiff also alleges that the “electronics” in the patients’
rooms do not work. (Id.).
1 Plaintiff has sued “Bishop Nursing Home” in
Syracuse, New York, more properly referred to
as “Bishop Rehabilitation and Nursing Center.”
The court will refer to the defendant as “Bishop”
for the purposes of this Order and Report
Recommendation.
Plaintiff states three causes of action concerning Bishop's
“neglect” toward patients, “defective” room equipment, and
the defendant's “refus[al] to move patients to another room
when other patients are being disruptive.” (Id. at 3). Plaintiff
requests that this court “order an FBI investigation into the
first, second, and third causes of action.” (Id. at 4).
III. Section 1983
A. Legal Standards
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Guillory v. Bishop Nursing Home, Not Reported in Fed. Supp. (2021)
2021 WL 1535474
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
*2 A claim for relief under 42 U.S.C. § 1983 must allege
facts showing that the defendant acted under the color of
a state “statute, ordinance, regulation, custom or usage.”
42 U.S.C. § 1983. Thus, to state a claim under § 1983, a
plaintiff must allege both that: (1) a right secured by the
Constitution or laws of the United States was violated, and
(2) the right was violated by a person acting under the color
of state law, or a “state actor.” See West v. Atkins, 487 U.S.
42, 48-49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Private
parties are generally not state actors, and are therefore not
usually liable under § 1983. Sykes v. Bank of Am., 723
F.3d 399, 406 (2d Cir. 2013) (quoting Brentwood Acad. v.
Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295, 121
S.Ct. 924, 148 L.Ed.2d 807 (2001)); see also Ciambriello v.
Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[T]he
United States Constitution regulates only the Government,
not private parties....”) (internal quotation marks and citation
omitted).
For the purposes of section 1983, the actions of a nominally
private entity are attributable to the state when: “(1) the
entity acts pursuant to the ‘coercive power’ of the state or
is ‘controlled’ by the state (‘the compulsion test’); (2) when
the state provides ‘significant encouragement’ to the entity,
the entity is a ‘willful participant in joint activity with the
[s]tate,’ or the entity's functions are ‘entwined’ with state
policies (‘the joint action test’ or ‘close nexus test’); or (3)
when the entity ‘has been delegated a public function by the
[s]tate,’ (‘the public function test’).” Caballero v. Shayna, No.
18-CV-1627, 2019 WL 2491717, at *3 (E.D.N.Y. June 14,
2019) (citing Sybalski v. Indep. Grp. Home Living Program,
Inc., 546 F.3d 255, 257 (2d Cir. 2008)). “The fundamental
question under each test is whether the private entity's
challenged actions are ‘fairly attributable’ to the state.” Id.
(quoting Fabrikant v. French, 691 F.3d 193, 207 (2d Cir.
2012)).
B. Application
Plaintiff is suing Bishop, a privately owned, for-profit care
facility. 2 He alleges no facts suggesting that Bishop is
a state actor under any of the aforementioned exceptions,
or describing how Bishop's actions are otherwise “fairly
attributable to the state.” Because plaintiff has failed to
plausibly allege that the named defendant acted under color
of state law, the complaint fails to state any claims for relief
under § 1983. See DuBois v. Bedford-Flatbush Chiropractic,
P.C., 409 F. Supp. 3d 62, 69 (E.D.N.Y. 2019) (acknowledging
that, in the context of § 1983, public functions do not include
operating nursing homes) (citing Manhattan Cmty. Access
Corp. v. Halleck, ––– U.S. ––––, 139 S. Ct. 1921, 1926,
204 L.Ed.2d 405 (2019)); White v. St. Joseph's Hosp., 369
Fed. App'x 225, 226 (2d Cir. 2010) (“[P]rivate actors and
institutions, such as the hospitals, nursing home, and cemetery
named as defendants in [plaintiff's] complaint, are generally
not proper § 1983 defendants because they do not act under
color of state law.”). Accordingly, the district court should
dismiss plaintiff's complaint against Bishop pursuant to §
1983.
2 See https://profiles.health.ny.gov/nursing_home/
printview/150499 (indicating that Bishop is
privately owned and operated by various
limited liability companies); see also https://
health.usnews. com/best-nursing-homes/area/ny/
bishop-rehabilitation-nursing-center-335338
(stating that Bishop operates under “for-profit,
partnership ownership”).
VI. Opportunity to Amend
A. Legal Standards
Generally, before the court dismisses a pro se complaint or
any part of the complaint sua sponte, the court should afford
the plaintiff the opportunity to amend at least once, however,
leave to re-plead may be denied where any amendment would
be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131
(2d Cir. 1993). Futility is present when the problem with
plaintiff's causes of action is substantive such that better
pleading will not cure it. Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000) (citation omitted).
B. Application
*3 The court is recommending dismissal of this action
for lack of subject matter jurisdiction over the § 1983
claim against Bishop. 3 Thus, any dismissal must be without
prejudice. Hollander v. Garrett, 710 F. App'x 35, 36 (2d Cir.
2018) (“[D]ismissal for subject matter jurisdiction must be
without prejudice.”). However, this court has serious doubts
about whether plaintiff can amend to assert any form of
federal jurisdiction over the situation that plaintiff describes
in his complaint. As there appears no basis for plaintiff to raise
his claims against Bishop in federal court, the court should not
allow plaintiff to amend, notwithstanding a dismissal without
prejudice. Because lack of subject matter jurisdiction is a
substantive defect, Deul v. Dalton, No. 1:11-CV-0637(GTS/
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Guillory v. Bishop Nursing Home, Not Reported in Fed. Supp. (2021)
2021 WL 1535474
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RFT), 2012 WL 235523, at *8 n.19 (N.D.N.Y. Jan. 25, 2012),
the court recommends dismissal without leave to amend. 4
3 Although the court's lack of federal subject matter
jurisdiction is the basis upon which I recommend
dismissal, it is not the only recognizable defect in
the complaint. For example, it is well settled that
any allegations by plaintiff challenging Bishop's
“negligent” conduct would not be cognizable
under § 1983. Hawthorne v. Nurse Sturgeon, No.
9:17-CV-438 (LEK/CFH), 2018 WL 4290458,
at *4 (N.D.N.Y. Aug. 8, 2018), report and
recommendation adopted sub nom., 2018 WL
4288624 (N.D.N.Y. Sept. 7, 2018) (“[N]egligence
is not actionable under § 1983.”) (citing, inter
alia, Daniels v. Williams, 474 U.S. 327 (1986)
(concluding that negligence is not a cognizable
claim under § 1983)). Moreover, the complaint
fails to contain any allegations plausibly suggesting
that plaintiff suffered an actual injury as a result
of Bishop's alleged conduct, including whether
plaintiff was ever even a resident at the facility. See
Elleby v. Martucello, No. 9:16-CV-1335 (MAD/
DEP), 2017 WL 9511177, at *3 (N.D.N.Y. Oct. 20,
2017), report and recommendation adopted, 2018
WL 582468 (N.D.N.Y. Jan. 29, 2018) (dismissing
§ 1983 claim because the court could “discern
no prejudice or actual injury suffered by plaintiff
as a result of defendant's [alleged conduct].”).
Finally, plaintiff's complaint seeks relief which
is outside the authority of this court to grant
in the context of a § 1983 action. See Jones v.
Waldron, No. 3:15-CV-00613, 2018 WL 3148369,
at *5 (D. Conn. June 27, 2018) (“This Court ...
adjudicates legal disputes and does not initiate
criminal investigations or direct prosecutions.
The authority to prosecute crimes or investigate
possible criminal charges rests solely with ...
prosecutors.”) (listing cases); see also Triplett v.
Palmer, No. 12-CV-4063, 2012 WL 6727617, at
*5 (N.D. Iowa Dec. 28, 2012) (holding that a
request that the court order a federal investigation
is “beyond the power and jurisdiction of this Court,
sitting in a 42 U.S.C. § 1983 action”); Lloyd v.
Jordan, No. 5:08-CT-3119, 2008 WL 6893363,
at *3 (E.D.N.C. Oct. 30, 2008) (dismissing as
frivolous plaintiff's request that the court order a
federal investigation of the defendants).
4 Plaintiff is a frequent litigant in this court,
having filed many federal complaints in the
Northern District. It bears noting that the court has
recommended dismissal of the last two complaints
filed by plaintiff in this district for lack of subject
matter jurisdiction. In these cases, as is the case
here, plaintiff failed to assert a § 1983 action
against a defendant acting “under color of state
law.” See Guillory v. Benedict et. al, No. 5:21-
CV-00073 (GLS/ATB) (N.D.N.Y.) (Dkt. Nos. 6,
7); Guillory v. Bramford, 5:18-CV-01049 (MAD/
ATB) (N.D.N.Y.) (Dkt. No. 6).
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's motion to proceed IFP (Dkt. No.
2) is GRANTED FOR PURPOSES OF FILING ONLY,
and it is
*4 RECOMMENDED, that this action be DISMISSED
WITHOUT PREJUDICE, but without the opportunity for
amendment, and it is
ORDERED, that the Clerk of the Court serve a copy of this
Order and Report-Recommendation on plaintiff by regular
mail.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have fourteen (14) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993)(citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
All Citations
Not Reported in Fed. Supp., 2021 WL 1535474
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Guillory v. Bishop Nursing Home, Not Reported in Fed. Supp. (2021)
2021 WL 2431259
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2021 WL 2431259
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Patrick GUILLORY, Plaintiff,
v.
BISHOP NURSING HOME, Defendant.
5:21-CV-410 (MAD/ATB)
|
Signed 06/15/2021
Attorneys and Law Firms
PATRICK GUILLORY, 753 James Street, Apt. #1129,
Syracuse, New York 13203, Plaintiff pro se.
ORDER
Mae A. D'Agostino, U.S. District Judge:
*1 Plaintiff commenced this action on April 12, 2021,
submitting a complaint pursuant to 42 U.S.C. § 1983, along
with a motion to proceed in forma pauperis (“IFP”). See
Dkt. Nos. 1, 2. In an Order and Report-Recommendation
dated April 19, 2021, Magistrate Judge Baxter conducted
an initial review of the complaint and IFP application and
found Plaintiff financially eligible for IFP status, granting
his motion to proceed IFP therein. See Dkt. No. 6. As
to the complaint, Magistrate Judge Baxter recommended
that this action be dismissed without prejudice, but without
opportunity for amendment. See id. at 7. Plaintiff did not
object to the report.
Plaintiff brings claims pursuant to 42 U.S.C. § 1983 against
Defendant Bishop Nursing Home (“Bishop”) for allegedly
“operating a dangerous establishment.” Dkt. No. 1 at 2.
Specifically, he complains that the “call bell in the restroom
do[es] not work and patients have to wait an hour” or more
for assistance from a nurse. Id. at 3. Plaintiff also alleges
that the “electronics” in the patients’ rooms do not work.
Id. Plaintiff states three causes of action concerning Bishop's
“neglect” toward patients, “defective” room equipment, and
Bishop's “refus[al] to move patients to another room when
other patients are being disruptive.” Id. Plaintiff requests that
this Court “order an FBI investigation into the first, second,
and third causes of action.” Id. at 4.
After conducting an initial review of the complaint,
Magistrate Judge Baxter found that “Plaintiff is suing Bishop,
a privately owned, for-profit care facility.” Dkt. No. 6 at
4. Because Plaintiff failed to plausibly allege that Bishop
acted under color of state law, Magistrate Judge Baxter found
that the complaint failed to state any claims for relief under
Section 1983. See id. at 4. Accordingly, Magistrate Judge
Baxter recommended that Plaintiff's complaint be dismissed
without prejudice for lack of subject matter jurisdiction. See
id. at 4-5. Because the problem with Plaintiff's complaint
is substantive such that better pleading will not cure it,
Magistrate Judge Baxter further recommended that this action
be dismissed without leave to amend. See id. at 6.
Section 1915(e)(2)(B) directs that, when a plaintiff seeks to
proceed IFP, “(2) ... the court shall dismiss the case at any
time if the court determines that - ... (B) the action ... (i) is
frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). “[I]n a pro se case, the court must view the
submissions by a more lenient standard than that accorded to
‘formal pleadings drafted by lawyers.’ ” Govan v. Campbell,
289 F. Supp. 2d 289, 295 (N.D.N.Y. 2003) (quoting Haines
v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d
652 (1972)). The Second Circuit has held that the court is
obligated to “make reasonable allowances to protect pro se
litigants” from inadvertently forfeiting legal rights merely
because they lack a legal education. Id. (quoting Traguth v.
Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
*2 When a party files specific objections to a magistrate
judge's report-recommendation, the district court makes a
“de novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). However, when
a party declines to file objections or files “[g]eneral or
conclusory objections or objections which merely recite
the same arguments [presented] to the magistrate judge,”
the court reviews those recommendations for clear error.
O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1
(N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted);
see also McAllan v. Von Essen, 517 F. Supp. 2d 672, 679
(S.D.N.Y. 2007). After the appropriate review, “the court may
accept, reject or modify, in whole or in part, the findings or
recommendations made by the magistrate [judge].” 28 U.S.C.
§ 636(b)(1).
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A litigant's failure to file objections to a magistrate judge's
report-recommendation, even when that litigant is proceeding
pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that,
“[a]s a rule, a party's failure to object to any purported error or
omission in a magistrate judge's report waives further judicial
review of the point”) (citation omitted). A pro se litigant must
be given notice of this rule; notice is sufficient if it informs
the litigant that the failure to timely object will result in the
waiver of further judicial review and cites pertinent statutory
and civil rules authority. See Frank v. Johnson, 968 F.2d 298,
299 (2d Cir. 1992); Small v. Sec'y of Health and Human
Servs., 892 F.2d 15, 16 (2d Cir. 1989) (holding that a pro se
party's failure to object to a report-recommendation does not
waive his right to appellate review unless the report explicitly
states that failure to object will preclude appellate review and
specifically cites 28 U.S.C. § 636(b)(1) and Rules 72, 6(a),
and former 6(e) of the Federal Rules of Civil Procedure).
Having carefully reviewed the April 19, 2021 Order and
Report-Recommendation, Plaintiff's submissions, and the
applicable law, the Court finds that Magistrate Judge Baxter
correctly determined that this action must be dismissed
without prejudice for lack of subject matter jurisdiction. To
state a claim for relief under 42 U.S.C. § 1983, a plaintiff
must allege that a right secured by the Constitution or laws
of the United States was violated by a person acting under
the color of state law, or a state actor. See West v. Atkins,
487 U.S. 42, 48-49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).
Private parties are generally not state actors, and are therefore
not subject to liability under Section 1983. Sykes v. Bank of
Am., 723 F.3d 399, 406 (2d Cir. 2013); see also Ciambriello
v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[T]he
United States Constitution regulates only the Government,
not private parties....”) (internal quotation marks and citation
omitted). For purposes of Section 1983, the actions of a
nominally private entity are attributable to the state when:
“(1) the entity acts pursuant to the ‘coercive power’ of the
state or is ‘controlled’ by the state (‘the compulsion test’);
(2) when the state provides ‘significant encouragement’ to
the entity, the entity is a ‘willful participant in joint activity
with the [s]tate,’ or the entity's functions are ‘entwined’ with
state policies (‘the joint action test’ or ‘close nexus test’);
or (3) when the entity ‘has been delegated a public function
by the [s]tate,’ (‘the public function test’).” Caballero v.
Shayna, No. 18-CV-1627, 2019 WL 2491717, *3 (E.D.N.Y.
June 14, 2019) (quoting Sybalski v. Indep. Grp. Home Living
Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008)). “The
fundamental question under each test is whether the private
entity's challenged actions are ‘fairly attributable’ to the
state.” Id. (quoting Fabrikant v. French, 691 F.3d 193, 207
(2d Cir. 2012)).
*3 In the present case, the named Defendant is a privately
owned, for-profit care facility and Plaintiff alleges no facts
suggesting that Bishop is a state actor under any of the
aforementioned exceptions, or that Bishop's actions are
otherwise fairly attributable to the state. See Dkt. No. 6 at
4. Because Plaintiff failed to plausibly allege that the named
Defendant acted under color of state law, Magistrate Judge
Baxter correctly determined that the complaint fails to state
any claims for relief under Section 1983. See DuBois v.
Bedford-Flatbush Chiropractic, P.C., 409 F. Supp. 3d 62,
69 (E.D.N.Y. 2019) (acknowledging that, in the context of
Section 1983, public functions do not include operating
nursing homes) (citing Manhattan Cmty. Access Corp. v.
Halleck, ––– U.S. ––––, 139 S. Ct. 1921, 1926, 204 L.Ed.2d
405 (2019)); White v. St. Joseph's Hosp., 369 Fed. App'x.
225, 226 (2d Cir. 2010) (“[P]rivate actors and institutions,
such as the hospitals, nursing home, and cemetery named as
defendants in [plaintiff's] complaint, are generally not proper
§ 1983 defendants because they do not act under color of state
law.”).
Moreover, Magistrate Judge Baxter correctly determined that
leave to re-plead should be denied. Generally, a pro se
complaint should not be dismissed “without giving leave
to amend at least once when a liberal reading of the
complaint gives any indication that a valid claim might be
stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794,
795 (2d Cir. 1999) (citation and internal quotation marks
omitted). However, an opportunity to amend is not required
where “the problem with [the plaintiff's] causes of action
is substantive” such that “better pleading will not cure it.”
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Because
lack of subject matter jurisdiction is a substantive defect,
Deul v. Dalton, No. 1:11-CV-0637, 2012 WL 235523, *8 n.19
(N.D.N.Y. Jan. 25, 2012), dismissal without leave to amend
is appropriate in this case.
Finally, the Court acknowledges that Plaintiff has waived any
right to challenge the report on appeal by failing to object to
the report within fourteen days. See Cephas v. Nash, 328 F.3d
98, 107 (2d Cir. 2003). In accordance with the requirement
that pro se litigants be given notice of this rule, see Frank v.
Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of
Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989),
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Plaintiff received sufficient notice upon receipt of the report.
See Dkt. No. 6 at 7.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Baxter's April 19, 2021
Order and Report-Recommendation is ADOPTED in its
entirety for the reasons set forth therein; and the Court further
ORDERS that this action is DISMISSED without
prejudice; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in
Defendant's favor and close this case; and the Court further
ORDERS that the Clerk of the Court serve a copy of this
Order on Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 2431259
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Denes v. Glens Falls Hosp., Not Reported in F.Supp.2d (2005)
2005 WL 2033489
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2005 WL 2033489
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Steven M. DENES, Plaintiff,
v.
GLENS FALLS HOSPITAL, Defendant.
No. 1:05 CV 0838 GLS DRH.
|
Aug. 17, 2005.
Attorneys and Law Firms
Steven Denes, Washington Correctional Facility, Comstock,
NY, Plaintiff, pro se.
DECISION and ORDER
SHARPE, J.
I. Background.
*1 Presently before this Court is an application to proceed
in forma pauperis and civil rights complaint filed by Steven
Denes (“plaintiff” or “Denes”). Denes has not paid any fee
relating to this action.
For the reasons stated below, plaintiff's complaint is dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B) and Rule 5.4(a) of the
Local Rules of Practice of this District.
In his pro se complaint Denes claims he was treated at
Glens Falls Hospital in 2002. The physicians who treated him
removed rocks and glass from his hand after an automobile
accident. Plaintiff alleges that it has been over two years, and
there are still bumps in his hand. Plaintiff seeks monetary
damages. For a complete statement of plaintiff's claims,
reference is made to the entire complaint filed herein.
II. Discussion.
Consideration of whether a pro se plaintiff should be
permitted to proceed in forma pauperis is a two-step process.
First, the Court must determine whether the plaintiff may
proceed with the action without prepaying, in full, the $250.00
filing fee. The Court must then consider whether the causes
of action stated in the complaint are, inter alia, frivolous or
malicious, or if they fail to state a claim upon which relief
may be granted. 28 U.S.C. § 1915(e)(2)(B).
(A) Application to Proceed In Forma Pauperis.
In the present case, the Court has determined that Denes'
financial status qualifies him to file or “commence” this action
without prepaying in full the $250.00 filing fee. However,
plaintiff did not file an inmate authorization indicating his
consent to pay the current filing fee. Thus, he may not be
permitted to proceed in forma pauperis until such time as a
current authorization is filed with the Court. Thus, at this time,
plaintiff's application to proceed in forma pauperis will be
denied as incomplete.
(B) Plaintiff's Claim.
Turning to the second inquiry, 28 U.S.C. § 1915(e), as
amended, directs that the Court:
(2) [S]hall dismiss the case at any time if the court determines
that -
* * *
(B) the action ... (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2)(B).
Thus, there is a responsibility on the Court to determine that a
complaint may be properly maintained in the District before
it may permit a plaintiff to proceed with an action. Id.
(1) Jurisdiction of the Court.
The subject matter jurisdiction of the federal district courts is
limited and is set forth generally in 28 U.S.C. §§ 1331 and
1332. Under these statutes, federal jurisdiction is available
only when a federal question is presented or when the
parties are of diverse citizenship and the amount in question
exceeds $75,000. It is well established that the Court may
raise the question of jurisdiction sua sponte, and that where
jurisdiction is lacking, “dismissal is mandatory.” United
Food & Commercial Workers Union, Local 919, AFL-CIO
v. Centermark Properties Meriden Square, Inc., 30 F.3d 298,
301 (2d Cir.1994); see also Fed.R.Civ.P. 12(h)(3).
(a) Diversity Jurisdiction.
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Denes v. Glens Falls Hosp., Not Reported in F.Supp.2d (2005)
2005 WL 2033489
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*2 Diversity jurisdiction exists only if there is diversity of
citizenship between the parties and the matter in controversy
exceeds the sum or value of $75,000. See 28 U.S.C. § 1332(a).
The party seeking to invoke diversity jurisdiction must
establish that complete diversity existed at the time the action
was commenced. Advani Enterprises, Inc. v. Underwriters
at Lloyds, 140 F.3d 157, 160 (2d Cir.1998). In this action
plaintiff does not allege, nor does it appear from the pleadings,
that there is complete diversity between the parties to this
action.
(b) Federal Question.
Plaintiff brought this action pursuant to 42 U.S.C. § 1983.
Section 1983 establishes a cause of action for “the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws” of the United States. German v.
Fed. Home Loan Mortg. Corp., 885 F.Supp. 537, 573
(S.D.N.Y.1995) (citing Wilder v. Virginia Hosp. Ass'n, 496
U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)) (footnote
omitted); see also Myers v. Wollowitz, No. 95-CV-0272, 1995
WL 236245, *2 (N.D.N.Y. Apr. 10, 1995) (McAvoy, C.J .) (§
1983 “is the vehicle by which individuals may seek redress
for alleged violations of their constitutional rights.”) (citation
omitted).
However, parties may not be held liable under this section
unless it can be established that they have acted under the
color of state law. See, e.g., Rounseville v. Zahl, 13 F.3d
625 (2d Cir.1994) (noting state action requirement under §
1983); Wise v. Battistoni, 92-Civ-4288, 1992 WL 380914, *1
(S.D.N.Y. Dec. 10, 1992) (same) (citations omitted). State
action is an essential element of any § 1983 claim. See Gentile
v. Republic Tobacco Co., No. 95-CV-1500, 1995 WL 743719,
*2 (N.D.N.Y. Dec. 6, 1995) (Pooler, D.J.) (citing Velaire v.
City of Schenectady, 862 F.Supp. 774, 776 (N.D.N.Y.1994)
(McAvoy, C.J.) (citation omitted)).
In the present case, the plaintiff's complaint contains no
allegations that defendant Glens Falls Hospital is a state actor.
Since it is the duty of the plaintiff to allege state action on
the part of the defendant named in a complaint, a court may
dismiss an action under 28 U.S.C. § 1915(e) where a plaintiff
fails to plead such a nexus. See, e.g., Carollo-Gardner v.
Diners Club, 628 F.Supp. 1253, 1256-57 (E.D.N.Y.1986)
(dismissing as frivolous pro se complaint where plaintiff
failed to allege state action on part of defendants) (citations
omitted); see also DeMatteis v. Eastman Kodak Co., 511
F.2d 306, 311 (2d Cir.) (affirming dismissal of complaint
where plaintiff failed to include allegations of state action
in complaint), modified on other grounds, 520 F.2d 409 (2d
Cir.1975); Lawson v. Abrams, No. CV-84-4325, 1988 WL
49244, *4 (E.D.N.Y. May 6, 1988).
Furthermore, even if the defendant were found to be a
state actor, Denes' claim is grounded in medical malpractice.
Negligence by physicians, even amounting to malpractice,
does not become a constitutional violation merely because the
plaintiff is an inmate; claims of malpractice or disagreement
with treatment are not actionable under § 1983. Murphy v.
Grabo, No. 94-CV-1684 1998 WL 166840 (N.D.N.Y., Apr 9,
1998) (Pooler, D.J.).
*3 Since plaintiff's complaint, as presented to this Court,
fails to state a claim upon which relief may be granted, it must
therefore be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)
and Rule 5.4(a) of the Local Rules of Practice of this District.
WHEREFORE, it is hereby
ORDERED, that leave to commence this action in forma
pauperis is denied as incomplete as plaintiff has not submitted
an inmate authorization indicating his consent to the filing fee
which is currently $250.00, and it is further
ORDERED, that this action is dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) and Rule 5.4(a) of the Local Rules of
Practice of this District, and it is further
ORDERED, that the Clerk serve a copy this Order on Denes
by regular mail.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2005 WL 2033489
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-01789-BKS-CBF Document 6 Filed 04/17/26 Page 83 of 138

Ferrari v. Cuomo, Slip Copy (2025)
2025 WL 965131
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 965131
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Joseph FERRARI, as Administrator of the Estate of
Christine Ferrari; Leova Jenkins, as Administrator
of the Estate of Eloise Brooks; Irasema Rivera, as
Administrator of the Estate of Paul Rivera; Jose
Monge, as Administrator of the estate of Blanca
Nieves; Stacie Druckman, as Administrator of the
Estate of Arthur Druckman; Deloris Peoples, as
Proposed Administrator of the Estate of Alex Peoples;
Sandra Thomas-Watson, as Administrator of the
Estate of Belinda Thomas; and Patricia Biondi, as
Executor of the Estate of Michael Biondi, on behalf of
themselves and all others similarly situated, Plaintiffs,
v.
Andrew M. CUOMO, Howard A. Zucker, M.D., Melissa
DeRosa, John Does and Jane Does 1-30, Defendants.
23 Civ. 7715 (KPF)
|
Signed March 31, 2025
Attorneys and Law Firms
Joseph Ciaccio, Napoli Shkolnik PLLC, Melville, NY, for
Plaintiffs.
Rita Marie Glavin, Katherine Ellen Petrino, Leo Korman,
Glavin PLLC, New York, NY, for Defendant Andrew M.
Cuomo.
Gregory Robert Morvillo, Morvillo PLLC, New York, NY,
Sarah Ann Sulkowski, Gelber & Santillo PLLC, New York,
NY, Anthony Michael Gruppuso, Gruppuso Legal, Chatham,
NJ, for Defendant Melissa DeRosa.
Nelson Andrew Boxer, Petrillo Klein & Boxer LLP, New
York, NY, for Defendant Howard A. Zucker M.D.
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
*1 On March 25, 2020, in the early days of the COVID-19
pandemic, the New York State Department of Health (the
“DOH”) issued an advisory that directed nursing homes to
readmit residents who had been discharged from hospitals
after being treated for COVID-19, regardless of whether
those residents continued to test positive for the virus. That
advisory, and its alleged impact on Christine Ferrari, Eloise
Brooks, Paul Rivera, Blanca Nieves, Arthur Druckman, Alex
Peoples, Belinda Thomas, and Michael Biondi — all of whom
resided in nursing homes, contracted COVID-19 while in
those nursing homes, and ultimately died from the virus —
are at the heart of this case. These individuals are represented
in this action by the administrators of their respective
estates (“Plaintiffs”), who allege that Defendants Andrew
M. Cuomo (“Cuomo”), Howard A. Zucker (“Zucker”), and
Melissa DeRosa (“DeRosa,” and collectively, “Defendants”)
are civilly liable for the effects of that advisory on nursing
home facilities. Plaintiffs also allege that Defendants are
liable for their failure to accurately report the number of
nursing home deaths in New York State that resulted from the
COVID-19 pandemic.
Plaintiffs have brought federal claims pursuant to 42 U.S.C.
§ 1983, and state-law claims for violations of the New York
Civil Rights Act and the New York State Constitution, as well
as for conscious pain and suffering, wrongful death, gross
negligence, and intentional infliction of emotional distress.
Before the Court now are Defendants’ motions to dismiss
the Amended Complaint in its entirety. As explained herein,
and despite the Court's deepest sympathy for Plaintiffs and
their families, the fact remains that their proffered claims are
not legally viable. Accordingly, the Court grants Defendants’
motions to dismiss; the Court dismisses the federal Section
1983 claim with prejudice, and the state-law claims without
prejudice.
BACKGROUND 1
1 This Opinion draws its facts from the Amended
Complaint (“AC” (Dkt. #39)), the well-pleaded
allegations of which are taken as true for purposes
of this Opinion. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The Court also relies, as
appropriate, on certain of the exhibits attached to
the Declaration of Nelson A. Boxer (“Boxer Decl.,
Ex. [ ]” (Dkt. #43)), the Declaration of Rita M.
Glavin (“Glavin Decl., Ex. [ ]” (Dkt. #48)), and
the Declaration of Joseph L. Ciaccio (“Ciaccio
Decl., Ex. [ ]” (Dkt. #52)). See DiFolco v. MSNBC
Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)
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(explaining that on a motion to dismiss, courts may
consider documents incorporated by reference and
documents integral to a complaint).
For ease of reference, the Court refers to Zucker's
memorandum of law in support of his motion to
dismiss as “Zucker Br.” (Dkt. #44); to DeRosa's
memorandum of law in support of her motion to
dismiss as “DeRosa Br.” (Dkt. #46); to Cuomo's
memorandum of law in support of his motion to
dismiss as “Cuomo Br.” (Dkt. #49); to Plaintiffs’
consolidated memorandum of law in opposition
to Defendants’ motions as “Pl. Opp.” (Dkt. #53);
to Zucker's reply memorandum of law as “Zucker
Reply” (Dkt. #56); to DeRosa's reply memorandum
of law as “DeRosa Reply” (Dkt. #55); and to
Cuomo's reply memorandum of law as “Cuomo
Reply” (Dkt. #54).
A. Factual Background
1. The Parties
*2 As mentioned, Plaintiffs in this action are the
administrators of the estates of their family members, all
of whom were residents of nursing homes and adult care
facilities in New York State who died during the COVID-19
pandemic (collectively, “Decedents”). (AC ¶ 1). Plaintiffs
include the following:
• Joseph Ferrari is the Administrator of the Estate of
his deceased spouse, Christine Ferrari. (AC ¶ 5). Ms.
Ferrari was admitted to the Yonkers Center for Nursing
and Rehabilitation in or around January 2020 for short-
term rehabilitation services. (Id. ¶ 6). Ms. Ferrari died
on April 27, 2020, due to “septic shock caused by
COVID-19.” (Id. ¶ 10).
• Leova Jenkins is the Administrator of the Estate of
her mother, Eloise Brooks. (AC ¶ 13). Ms. Brooks
was admitted to the Upper East Side Rehabilitation
and Nursing Center in or around November 2019, for
rehabilitation services following hip surgery. (Id. ¶ 14).
Ms. Brooks was transferred to a hospital on April 9,
2020, after experiencing “difficulty breathing.” (Id. ¶
18). She died five days later, on April 14, 2020, after
being diagnosed with COVID-19. (Id.).
• Irasema Rivera is the Administrator of the Estate of her
father, Paul Rivera. (AC ¶ 21). Mr. Rivera was a long-
term care resident of the Workmen's Circle Multicare
Center in the Bronx, New York, from in or around 2012,
until on or about May 4, 2020. (Id. ¶ 22). On May 4,
2020, Mr. Rivera was brought to the hospital because he
was having seizures and had contracted COVID-19. (Id.
¶ 26). He died on May 12, 2020. (Id.).
• Jose Monge is the Administrator of the Estate of his
mother, Blanca Nieves. (AC ¶ 29). Ms. Nieves was a
long-term care resident at the Bronx Center for Nursing
and Rehabilitation from in or around 2016, until on
or about April 18, 2020. (Id. ¶ 30). Ms. Nieves, who
suffered from dementia, died on May 13, 2020, after
she was hospitalized and placed on hospice due to
COVID-19-related complications. (Id. ¶ 31).
• Stacie Druckman is the Administrator of the Estate of her
father, Arthur Druckman. (AC ¶ 33). Mr. Druckman was
a resident at the Morningside Nursing and Rehabilitation
Center in the Bronx, New York, from in or around 2017,
until on or about April 5, 2020. (Id. ¶ 34). Mr. Druckman
died from COVID-19-related complications on April 17,
2020. (Id. ¶ 35).
• Deloris Peoples is the Proposed Administrator of
the Estate of her brother, Alex Peoples. (AC ¶ 38).
Mr. Peoples was a resident of Triboro Center for
Rehabilitation and Nursing in the Bronx, New York,
from in or around January 2017, until on or about April
10, 2020. (Id. ¶ 39). Mr. Peoples died from COVID-19-
related complications on April 13, 2020. (Id. ¶ 42).
• Sandra Thomas-Watson is the Administrator of the Estate
of her mother, Belinda Thomas. (AC ¶ 44). Ms. Thomas
was a resident at the Clove Lakes Health Care and
Rehabilitation Center Inc. in Staten Island, New York,
where she received rehabilitation services following a
stroke. (Id. ¶ 45). She was a resident of the facility
from 2018 until April 21, 2020. (Id.). Ms. Thomas died
on May 1, 2020, after being hospitalized and put on a
ventilator after contracting COVID-19. (Id. ¶ 47).
• Patricia Biondi is the Executor of the Estate of her
deceased spouse, Michael Biondi. (AC ¶ 50). Mr. Biondi
was a resident at the North Westchester Restorative
Theory and Nursing Center in Mohegan Lake, New
York, from October 16, 2020, until on or about
November 19, 2020. (Id. ¶ 51). Mr. Biondi was admitted
to a hospital in November 2020 because of COVID-19-
related complications, and he died on November 24,
2020. (Id. ¶ 52).
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*3 Plaintiffs also seek to bring claims on behalf of two
proposed classes of similarly situated individuals, which
classes “represent[ ] the estates of elder, mentally, and/or
physically disabled nursing home residents across the State of
New York, who were under lockdown and confined to their
nursing homes during the COVID-19 pandemic.” (Id. ¶ 57). 2
2 Specifically, Plaintiffs propose the following two
classes:
Class 1: Comprised of individuals who were
nursing home residents who were under
lockdown orders at any time during the
effectiveness of the March 25th Directive, and
were exposed to, contracted the COVID-19
viral infection, and died after the March 25th
Directive came into effect compelling nursing
homes to admit and readmit patients discharged
from hospitals even if they were positive for
COVID-19 (“Class 1”). [Plaintiffs] estimate
Class 1 is potentially comprised of more than
7,000.
Class 2: Comprised of individuals who were
nursing home residents at any time during the
period the Defendants were actively conspiring,
suppressing, distorting, and manipulating public
health information about death count of the
COVID-19 infection in nursing home settings
(“Class 2”). [Plaintiffs] estimate Class 2 is
potentially comprised of more than 8,000.
(AC ¶ 57).
Defendants are all former New York State government
officials. Andrew M. Cuomo served as Governor of New York
from 2011 until 2021. (AC ¶ 61). Howard A. Zucker served
as Commissioner of the DOH from approximately May 2015
until November 2021. (Id. ¶ 62). Melissa DeRosa served as
the Governor's Secretary of Staff from 2017 to 2021. (Id. ¶
63). Plaintiffs also bring claims against John and Jane Does
1-30, who “are individuals whose identities and involvement
can only be ascertained through the discovery process,” but
who, “upon information and belief, acted under color of state
law to deprive plaintiffs-decedents of their federally protected
constitutional and statutory rights.” (Id. ¶ 66).
2. COVID-19 and Nursing Home Facilities
The COVID-19 pandemic, and the devastation it wrought,
need no introduction. The Amended Complaint details the
early months of the COVID-19 outbreak in the United States,
as politicians, health organizations, and the public gained
awareness of the growing threat the virus posed. As alleged in
the Amended Complaint, Defendants were first “made aware”
of COVID-19 in January 2020. (AC ¶ 69). The first case of
COVID-19 in New York was reported shortly thereafter, on
March 1, 2020. (Id. ¶ 85). On March 7, 2020, then-Governor
Cuomo declared a state of emergency. (Id. ¶ 91). Less
than a week later, the World Health Organization declared
COVID-19 a global pandemic (id. ¶ 94), and President
Donald J. Trump declared a national emergency (id. ¶ 97).
According to Plaintiffs, even in the early days of the
pandemic, there was an awareness of the acute risk that
COVID-19 posed to older adults — particularly those housed
in long-term care facilities such as nursing homes. (AC ¶
82). Reports had spread of an incident in King County,
Washington, where a resident of a nursing home died on
March 2, 2020, three days after contracting COVID-19. (Id.
¶¶ 81-82). And as of March 9, 2020, at least eight other
King County skilled nursing and assisted living facilities had
reported one or more confirmed COVID-19 cases. (Id. ¶
81). Recognizing the urgency of the situation, several public
health organizations began issuing guidance directly targeted
at adult care facilities, such as nursing homes.
*4 For example, on February 29, 2020, the Centers for
Disease Control and Prevention (the “CDC”) issued a report
to nursing homes, which report instructed facilities to, among
other things, “[t]ake steps to prevent known or suspected
COVID-19 patients from exposing other patients.” (AC
¶ 84). On March 4, 2020, the Center for Medicare and
Medicaid Services (the “CMS”) issued its Guidance for
Infection Control and Prevention of Coronavirus Disease
2019 (COVID-19) in Nursing Homes, which recommended
the suspension of standard nursing home activities and the
screening of visitors and staff for signs of infections. (Id. ¶
88). The DOH followed suit, and issued guidance on March
6, 2020, detailing precautions and procedures that nursing
homes should take to protect the health of their residents and
staff. (Id. ¶ 90).
The CDC, the CMS, and the DOH continued to issue
updated versions of their reports throughout March 2020,
and each report provided additional guidance on how to
limit the transmission of COVID-19 in nursing homes. (AC
¶¶ 92-93, 95-96, 98-100). On March 18, 2020, the CDC
published a report analyzing what occurred in King County,
Washington, titled COVID-19 in a Long-Term Facility —
King County, Washington, February 27-March 9, 2020.
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This CDC report highlighted that COVID-19 (i) can cause
“severe illness and death, particularly among older adults
with chronic health conditions,” and (ii) “can spread rapidly
in long-term residential care facilities.” (Id. ¶ 102). The
report also emphasized that “[a]s the pandemic expands,
continued implementation of public health measures targeting
vulnerable populations such as residents of a long-term care
facilities ... will be critical.” (Id. ¶ 103).
Ultimately, the predictions outlined by the CDC, the CMS,
and the DOH proved only too accurate. (AC ¶ 131). As of
May 22, 2020, for example, 43% of all COVID-19 deaths in
the United States were residents of long-term care facilities,
even though that cohort comprised only 0.62% of the nation's
population. (Id.).
3. The March 25th Directive
In March 2020, COVID-19 was spreading rapidly throughout
New York State. In response, on March 23, 2020, Defendants
issued a mandate addressed to hospitals, ambulatory surgery
centers, office-based surgery practices, and diagnostic and
treatment centers, requiring an increase in the availability
of beds by a minimum of 50 percent. (AC ¶ 105). Two
days later, on March 25, 2020, Defendants issued another
advisory (the “March 25th Directive”) 3 — this one directed
at nursing homes — that mandated that “no resident shall
be denied re-admission or admission to the [nursing home]
solely based on a confirmed or suspected diagnosis of
COVID-19.” (Id. ¶ 106). The March 25th Directive also
“prohibited [nursing homes] from requiring a hospitalized
resident who is determined medically stable to be tested for
COVID-19 prior to admission or re-admission.” (Id.).
3 Plaintiffs refer to the pronouncement as the “March
25th Directive,” while Defendants refer to it as
the “March 25th Advisory.” (Compare AC ¶ 1,
with Zucker Br. 3, DeRosa Br. 2, and Cuomo
Br. 4). Both terms appear in the text of the
document. (See Boxer Decl., Ex. A). The Court
adopts Plaintiffs’ nomenclature, recognizing that
this semantic difference has no impact on the
Court's analysis.
Immediately after its issuance, the March 25th Directive
allegedly provoked the ire of patient care support groups
and public health organizations, who criticized the directive
as “over-reaching” and “not consistent with science.” (AC
¶¶ 107-112). These organizations included the Society for
Post-Acute and Long-Term Care Medicine of the American
Medical Directors Association (the “AMDA”), the American
Health Care Association (the “AHCA”), and the National
Center for Assisted Living (the “NCAL”). (Id.). For example,
in a joint statement, the three organizations warned that
“requiring all New York nursing homes state-wide to accept
all patients regardless of their COVID-19 status, even from
hospitals that are not at capacity, will likely cause many more
hospitalizations.” (Id. ¶ 111). However, despite the criticism
of the March 25th Directive, another directive was issued on
April 7, 2020, which similarly required that “[n]o resident
shall be denied re-admission or admission to [an adult care
facility] solely based on a confirmed or suspected diagnosis
of COVID-19.” (Id. ¶ 123).
*5 The March 25th Directive continued to remain in effect,
even though by April 25, 2020, Defendants allegedly “knew
of widespread reports that the coronavirus had killed nearly
11,000 people in nursing homes in 36 states, with more than
one third of them occurring in New York.” (AC ¶ 127). During
this time, individuals such as the head of a Brooklyn-based
nursing home, Cobble Hill Health Center, allegedly “pleaded”
with health officials, to no avail, to take alternate measures,
such as sending residents suspected of having COVID-19 to
the Javits Convention Center or to the U.S. Navy hospital
ship USNS Comfort. (Id. ¶ 148). The Amended Complaint
suggests that in creating and maintaining the March 25th
Directive, Defendants were swayed by the influence of
“outside private actors” in the hospital industry, such as
the Greater New York Hospital Association (“GNYHA”),
who were allegedly “generous donors” to Governor Cuomo's
political campaigns. (Id. ¶ 156). These organizations were, in
turn, allegedly motivated by a desire to ease the burden of the
pandemic on their association's members. (Id. ¶ 157).
On May 10, 2020, the March 25th Directive was partially
rescinded via Executive Order No. 202.30. (AC ¶ 130).
Under this new directive, hospitals were not permitted to
“discharge a patient to a nursing home, unless the nursing
home operator or administrator has first certified that it is able
to properly care for such patient.” (Id.). Moreover, a hospital
was not to discharge a patient to a nursing home “without first
performing a diagnostic test for COVID-19 and obtaining a
negative result.” (Id.).
4. The DOH Report
In a report released on July 6, 2020 (the “DOH Report”),
the DOH concluded that the March 25th Directive was not
responsible for the further spreading of COVID-19 among
nursing home populations. (AC ¶ 133). Indeed, the DOH
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Report concluded that “[a]dmission policies were not a
significant factor in nursing home fatalities,” and that the
“March 25 guidance was not the driving force in nursing
home deaths.” (Id.). The report also claimed that New York
State followed the CMS's guidance when forming its nursing-
home-related policies. (Id. ¶ 136). Plaintiffs challenge the
validity of this report, and assert that the CMS had always
emphasized that nursing homes should admit residents with
COVID-19 only if able to “follow CDC guidance for
transmission-based precautions.” (Id.).
After its issuance, the DOH Report was heavily criticized by
members of the public health community and the press. One
article published by ProPublica noted that while the report
was done with “the aid of the consulting company McKinsey
& Co.,” the report failed list a “single author by name.” (AC
¶ 135). And perhaps most damningly, on January 28, 2021,
a different report issued by the New York State Office of the
Attorney General (the “OAG”) concluded that “over 4,000
nursing home deaths occurred after issuance of the March 25
guidance,” and that “these admissions may have contributed
to increased risk of nursing home resident infection, and
subsequent fatalities.” (Id. ¶ 137).
The OAG also found that the State of New York and the
DOH had undercounted COVID-19-related nursing home
resident deaths by as much as 50 percent, or close to 4,000
underreported deaths. (AC ¶ 137). While Governor Cuomo
allegedly dismissed the criticisms of the DOH Report (id. ¶
138), in February 2021, the DOH Report was revised (id.
¶ 136). The updated report provided that, as of January 19,
2021, the total reported nursing home deaths stood at 12,743.
(Id. ¶ 139). This was a significant uptick from one day earlier,
when the total “pushed by the Defendants, in a concerted
manner,” had been 8,711. (Id.). On February 10, 2021, Zucker
sent a letter to lawmakers stating that the total number of
nursing home residents who had died from COVID-19 was
now 13,297. (Id. ¶ 141).
On March 15, 2022, the Office of the New York State
Comptroller (the “Comptroller”) published the findings of
an audit that covered the period from January 2017 through
November 2021. (AC ¶ 143). This audit found that “New
York significantly trailed other states in surveying nursing
homes and developing strategies to stop infections from
spreading in facilities.” (Id. ¶ 144). The Comptroller opined
that “[t]he public was misled by those at the highest level
of state government through distortion and suppression of
facts when New Yorkers deserved the truth.” (Id. ¶ 145).
Moreover, the Comptroller found that the DOH had “failed to
meet its ‘ethical’ and ‘moral’ imperatives to act transparently
in counting nursing home deaths between April 2020 and
February 2021.” (Id. ¶ 147). Per the Comptroller's report, an
estimated 13,919 residents in New York nursing homes died
from COVID-19 between March 4, 2020, and May 23, 2021.
(Id. ¶ 151).
B. Procedural Background
*6 This case was initiated on August 30, 2023, with the
filing of a complaint. (Dkt. #1). Plaintiffs brought a federal
claim for deprivation of civil rights under Section 1983, as
well as numerous state-law claims. On November 17, 2023,
the Court received pre-motion letters from Defendants Zucker
(Dkt. #18), Cuomo (Dkt. #22), and DeRosa (Dkt. #23), each
requesting a pre-motion conference regarding Defendants’
anticipated motions to dismiss. On November 29, 2023, the
Court received an additional pre-motion letter from then-
Defendant Sally Dreslin. (Dkt. #26). Plaintiffs opposed each
of these requests. (Dkt. #27, 30).
The Court held a pre-motion conference on January 18,
2024, during which the Court set a briefing schedule for
Defendants’ motions to dismiss, which schedule included
a period for Plaintiffs to file an Amended Complaint.
(January 18, 2024 Minute Entry). In accordance with the
Court's schedule, Plaintiffs filed the Amended Complaint,
the operative pleading in this action, on February 22, 2024.
(Dkt. #39). The Amended Complaint dismissed Plaintiffs’
claims against Sally Dreslin, who was then terminated
from this action. (Id.). On March 29, 2024, the remaining
Defendants filed their individual motions to dismiss the
Amended Complaint. (Dkt. #42, 45, 47). Plaintiffs filed their
consolidated opposition to the motions to dismiss on June
3, 2024. (Dkt. #53). On June 28, 2024, Defendants filed
their replies in further support of their motions to dismiss the
Amended Complaint. (Dkt. #54, 55, 56).
DISCUSSION
A. Applicable Law
When considering a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), a court must “draw all reasonable
inferences in [p]laintiff[’s] favor, assume all well-pleaded
factual allegations to be true, and determine whether they
plausibly give rise to an entitlement to relief.” Faber v.
Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal
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quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (“To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” (internal
quotation marks omitted)). A plaintiff is entitled to relief if
she alleges “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007); see also In re Elevator Antitrust Litig.,
502 F.3d 47, 50 (2d Cir. 2007) (“While Twombly does not
require heightened fact pleading of specifics, it does require
enough facts to nudge [plaintiff's] claims across the line from
conceivable to plausible.” (internal quotations marks omitted)
(citing Twombly, 550 U.S. at 570)).
That said, a court is “not bound to accept conclusory
allegations or legal conclusions masquerading as factual
conclusions.” Rolon v. Henneman, 517 F.3d 140, 149 (2d
Cir. 2008) (citation and internal quotation marks omitted);
see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)
(“[A]lthough a court must accept as true all of the allegations
contained in a complaint, that tenet is inapplicable to legal
conclusions, and threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” (internal quotation marks omitted) (quoting Iqbal,
556 U.S. at 678)). Moreover, “[w]here a complaint pleads
facts that are ‘merely consistent with’ a defendant's liability,
it ‘stops short of the line between possibility and plausibility
of entitlement to relief.’ ” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557).
On a motion to dismiss, “the Court may consider any written
instrument attached to the [c]omplaint as an exhibit, any
statements or documents incorporated by reference in the
[c]omplaint, documents that are ‘integral’ to the [c]omplaint
even if they are not incorporated by reference, and matters of
which judicial notice may be taken.” Donoghue v. Gad, No.
21 Civ. 7182 (KPF), 2022 WL 3156181, at *2 (S.D.N.Y. Aug.
8, 2022) (citing Chambers v. Time Warner, Inc., 282 F.3d 147,
152-53 (2d Cir. 2002); Goel v. Bunge, Ltd., 820 F.3d 554, 559
(2d Cir. 2016)).
B. Analysis
*7 Against the dispiriting factual backdrop outlined above,
the Court considers the adequacy of Plaintiffs’ pleadings. 4
It begins with Plaintiffs’ federal claim in Count I, which
comprises substantive and conspiracy claims under 42 U.S.C.
§ 1983 predicated on violations of Decedents’ rights under
the U.S. Constitution and the Federal Nursing Home Reform
Act of 1987 (the “FNHRA”). In their motions to dismiss,
Defendants argue that Count I should be dismissed because:
(i) Plaintiffs fail to allege a violation of federal rights; and
(ii) even if Plaintiffs’ federal rights were violated, Defendants
acted in their individual capacities and are shielded by the
doctrine of qualified immunity. The Court addresses each
argument in turn, and ultimately agrees that Plaintiffs have
failed to plead a viable Section 1983 claim. Moreover,
because the Court dismisses Plaintiffs’ sole federal claim, it
declines to exercise supplemental jurisdiction over Plaintiffs’
remaining state-law claims.
4 For clarity, the Court refers generally to “Plaintiffs’
” claims, even as it is aware that the conduct
underlying the claims was directed at, and the
consequences felt most acutely by, Decedents.
1. Plaintiffs’ Section 1983 Claim Is Dismissed for
Failure to State a Claim
Section 1983 provides a cause of action against any
person who, under color of any
statute, ordinance, regulation, custom,
or usage, of any State ..., subjects,
or causes to be subjected, any
citizen of the United States or other
person within the jurisdiction thereof
to the deprivation of any rights,
privileges, or immunities secured by
the Constitution and laws.
42 U.S.C. § 1983. “To state a claim under [Section 1983],
a plaintiff must allege both that: [i] a right secured by
the Constitution or laws of the United States was violated,
and [ii] the right was violated by a person acting under
the color of state law.” Golian v. N.Y.C. Admin. for Child.
Servs., 282 F. Supp. 3d 718, 727 (S.D.N.Y. 2017) (citing
West v. Atkins, 487 U.S. 42, 48 (1988)). Section 1983 “is
not itself a source of substantive rights, but a method for
vindicating federal rights elsewhere conferred by those parts
of the United States Constitution and federal statutes that it
describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979);
see Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999). Here,
as previously noted, Plaintiffs assert that Defendants violated
their substantive due process rights under the Fourteenth
Amendment, as well as their statutory rights under the
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FNHRA. The Court, however, finds that Plaintiffs have failed
to assert a violation under either theory.
a. Plaintiffs Have Failed to
Allege a Constitutional Violation
The Court begins by addressing Plaintiffs’ constitutional
claim, whereby Plaintiffs allege that Defendants’ actions
deprived their loved ones of their “fundamental rights to
life, bodily integrity, and the right to personal security.” (Pl.
Opp. 18, 22-24). Plaintiffs’ claim is based in the Due Process
Clause of the Fourteenth Amendment (AC ¶ 160), which,
as the Supreme Court explained in DeShaney v. Winnebago
Cnty. Dep't of Soc. Servs., 489 U.S. 189, 196 (1989), “was
to intended to prevent government ‘from abusing [its] power,
or employing it as an instrument of oppression[.]’ ” As such,
the Due Process Clause “protects against government action
that is arbitrary, conscience-shocking, or oppressive in a
constitutional sense, but not against government action that is
incorrect or ill advised.” Cunney v. Bd. of Trs. of Vill. of Grand
View, N.Y., 660 F.3d 612, 626 (2d Cir. 2011) (quoting Kaluczky
v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995));
accord Ferran v. Town of Nassau, 471 F.3d 363, 369-70 (2d
Cir. 2006). Nor does the Due Process Clause “require[ ] the
State to protect the life, liberty, and property of its citizens
against invasion by private actors.” DeShaney, 489 U.S. at
195. 5
5 See generally Cullen v. Mello, No. 23-413, 2024
WL 1904571, at *2 (2d Cir. May 1, 2024)
(summary order):
“Substantive due process protects against
government action that is arbitrary, conscience-
shocking, or oppressive in a constitutional
sense, but not against government action that
is incorrect or ill-advised.” Kaluczky v. City
of White Plains, 57 F.3d 202, 211 (2d Cir.
1995) (cleaned up). Nor does “substantive due
process ... entitle federal courts to examine every
alleged violation of state law, especially ones
that, while perhaps vexatious, are more routine
than egregious.” Kuck v. Danaher, 600 F.3d 159,
167 (2d Cir. 2010). Rather, “[s]ubstantive due
process standards are violated only by conduct
that is so outrageously arbitrary as to constitute a
gross abuse of governmental authority.” Natale
v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir.
1999).
*8 The Second Circuit nevertheless has recognized “
‘two separate and distinct theories’ under which a state
actor's failure to protect against private violence can violate
substantive due process.’ ” Golian, 282 F. Supp. 3d at
728 (quoting Benzman v. Whitman, 523 F.3d 119, 127 (2d
Cir. 2008) (internal quotation marks omitted)). These “two
exceptions to th[e] general principle, rooted in the Supreme
Court's analysis in Deshaney,” are (i) the “special relationship
exception” and (ii) the “state-created danger exception.”
Matican v. City of New York, 524 F.3d 151, 155-57 (2d
Cir. 2008). Even if a plaintiff's claims fall within one of
these two exceptions, however, a defendant's behavior only
constitutes a constitutional violation if the behavior was
“so egregious, so outrageous, that it may fairly be said to
shock the contemporary conscience.” Cnty. of Sacramento v.
Lewis, 523 U.S. 833, 848 n.8 (1998). Here, because Plaintiffs
argue that both exceptions apply, the Court considers (i)
whether Defendants’ substantive Section 1983 claim falls
within either of the two DeShaney exceptions and (ii) whether
Defendants’ behavior can be said to shock the contemporary
conscience.
i. The Special Relationship Exception
“The special relationship exception grows from the DeShaney
Court's observation that ‘in certain limited circumstances the
Constitution imposes upon the State affirmative duties of
care and protection with respect to particular individuals.’ ”
Matican, 524 F.3d at 155 (quoting DeShaney, 489 U.S. at
198). The “linchpin of any special relationship exception”
is “involuntary custody,” id. at 156 (citing Lombardi v.
Whitman, 485 F.3d 73, 79 n.3 (2d Cir. 2007)), such as when
someone is incarcerated, id. at 155-56 (citing DeShaney, 489
U.S. at 199-200; Lombardi, 485 F.3d at 79 n.3); involuntarily
committed to an institution for mental health reasons, id.
(citing DeShaney, 489 U.S. at 199-200); or placed in foster
care, id. at 156 (citing Doe v. N.Y.C. Dep't of Soc. Servs., 649
F.2d 134, 141 (2d Cir. 1981)). See also Ying Jin Gan v. City of
New York, 996 F.2d 522, 533 (2d Cir. 1993) (collecting cases).
Although “[i]nvoluntary custody for purposes of substantive
due process does not require the plaintiff to be in the physical
custody of the State, ... some form of functional state control
over the person is required.” Golian, 282 F. Supp. 3d at 728.
Plaintiffs assert that a “special relationship” arose because:
[i] the State ordered a “lockdown which confined these
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nursing home residents, many cognitively impaired and
physically disabled, to their respective facilities; [ii] granted
nursing homes with broad immunity from liability, via the
Emergency Disaster Treatment Protection Act (‘EDTPA’),
PHL §§ 3080-3082, and [iii] issued a Must-Admit Order
that directly impacted their quality of life.” (Pl. Opp. 36).
However, Plaintiffs fail to allege how this confluence of
factors equates to the narrow circumstances where this Circuit
has previously found “involuntary custody” over plaintiffs.
Matican, 524 F.3d at 156. Even in the limited situations where
the Second Circuit has recognized that physical custody is
not required to assert that a special relationship exists, it has
nonetheless required some functional state control over the
person. For example, in Jacob v. Ramirez, the Court found
that a parolee, though not in the state's physical custody,
was “nonetheless in its legal custody” such that a special
relationship existed. 400 F.3d 105, 106 (2d Cir. 2005) (per
curiam). Critical to the Jacob Court's reasoning was the fact
that the state “curtail[s]” a parolee's “freedom of movement”
beyond that of the average citizen. Id.
Here, Decedents were voluntarily placed into nursing home
facilities and were free at all times to seek alternative methods
of treatment. Cf. George v. Rockland State Psychiatric Ctr.,
No. 10 Civ. 8091 (NSR), 2014 WL 5410059, at *8 (S.D.N.Y.
Oct. 23, 2014) (concluding that special relationship did not
exist between parolee and state when parolee was “free to find
his own medical treatment” at a specific hospital); Bascom
v. City of New York, No. 23 Civ. 10898 (VEC), 2025 WL
692082, at *4 (S.D.N.Y. Mar. 4, 2025) (finding no special
relationship existed between the state and children who were
“voluntarily enrolled” in an after-school program). What is
more, the mere fact that these nursing homes were subject
to state regulations — as many institutions are — does not
render all those housed within them in a “special relationship”
with the state. Using similar logic, courts in this District have
routinely refused to apply the special relationship exception
in cases involving schools, despite the prevalence of state
regulations and compulsory attendance requirements. See,
e.g., H.B. v. Monroe Woodbury Cent. Sch. Dist., No. 11
Civ. 5881 (CS), 2012 WL 4477552, at *10 (S.D.N.Y. Sept.
27, 2012) (“[C]ourts in this Circuit and elsewhere have
generally held that ‘[e]ven in light of compulsory [education]
attendance laws, no special relationship is created between
students and school districts such that school districts take on
any such duty to protect students from the private actions of
others.’ ” (quoting Santucci v. Newark Valley Sch. Dist., No.
05 Civ. 971 (TJM), 2005 WL 2739104, at *3 (N.D.N.Y. Oct.
24, 2005)); see also F.H. by Pichardo v. City of Yonkers, No.
19 Civ. 4722 (PED), 2022 WL 16722214, at *5 (S.D.N.Y.
Nov. 4, 2022) (“[W]hile schools impose certain rules and
restrictions on students, they do not limit an individual's
freedom to act in the same manner as involuntary confinement
by the state in a state prison or mental institution.”) (quoting
P.W. v. Fairport Cent. Sch. Dist., 927 F. Supp. 2d 76, 82
(W.D.N.Y. 2013)). This difference in treatment makes sense,
because courts are instructed to apply the special relationship
exception only in “exceptional circumstances,” Ying Jang
Gan, 996 F.2d at 533, where “liability arises from the
relationship between the state and a particular victim,” Pena
v. DePrisco, 432 F.3d 98, 109 (2d Cir. 2005). Comparable
circumstances are not present here, and the Court therefore
declines to expand the definition of involuntary custody
beyond the limits previously recognized in this Circuit.
Accordingly, Plaintiffs cannot rely on the special relationship
exception as the basis for their substantive due process claim.
ii. The State-Created Danger Exception
*9 “Like the special relationship exception, the state-
created danger exception arises from the Court's analysis
in DeShaney.” Matican, 524 F.3d at 157. “After explaining
that no special relationship existed between the state and
petitioner, the [DeShaney] Court further noted that, ‘[w]hile
the State may have been aware of the dangers that [petitioner]
faced in the free world, it played no part in their creation,
nor did it do anything to render him any more vulnerable to
them.’ ” Id. (alterations in original) (emphasis added) (quoting
DeShaney, 489 U.S. at 201). Following this reasoning,
the Second Circuit has “conclude[d] that, by negative
implication, the state does infringe a victim's due process
rights when its officers assist in creating or increasing
the danger that the victim faced at the hands of a third
party.” Id. (citing Dwares v. City of New York, 985 F.2d
94, 99 (2d Cir. 1993)). In other words, “the state may be
liable for failing to protect against private violence when a
state actor ‘affirmatively create[s] or enhance[s] the danger
of private violence.’ ” Eubanks v. Hansell, No. 24-1165,
2024 WL 4662983, at *2 (2d Cir. Nov. 4, 2024) (summary
order) (alterations in original) (emphasis added) (quoting
Okin v. Vill. of Cornwall-on-Hudson Police Dep't, 577 F.3d
415, 428 (2d Cir. 2009)). By contrast, the state cannot be
liable where the victim of private violence alleges merely
that “state functionaries ... stood by and did nothing when
suspicious circumstances dictated a more active role for
them.” DeShaney, 489 U.S. at 203. Likewise, it is insufficient
to allege only “that the state agent's actions contributed to
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or increased the likelihood that the victim would be unsafe.”
Golian, 282 F. Supp. 3d at 730 (citing Hemphill v. Schott, 141
F.3d 412, 418 (2d Cir. 1998); Matican, 524 F.3d at 158 n.7;
Okin, 577 F.3d at 430).
Plaintiffs allege that the March 25th Directive falls within
the state-created danger exception because it “undoubtedly
increased the foreseeable danger and direct harm to which
nursing home residents were already exposed to and led
to the deaths of many nursing home residents.” (Pl. Opp.
37). They reason that not only did Defendants respond to
the COVID-19 pandemic in an imprudent manner, but they
in fact affirmatively created a danger by issuing the March
25th Directive. (Id.). As Defendants point out, however,
the “Second Circuit has never found a state-created danger
established in the absence of third-party, particularized
violence.” (Zucker Br. 19). As such, for Plaintiffs’ claims
to survive, they must allege facts showing that “Defendants
officially sanctioned or encouraged [the] perpetrators to
commit the private acts of violence.” Brown v. City of
New York, 786 F. App'x 289, 292 (2d Cir. 2019) (summary
order) (rejecting an application of the state-created danger
exception when defendants allegedly placed plaintiff in a
dangerous shelter room with individuals who threatened her).
But the Amended Complaint contains no allegations that
the nursing homes, as the alleged perpetrators of “private
violence,” committed a state-sanctioned violent act that
caused Decedents harm. Id. at 292-93. (See DeRosa Br. 14).
Instead, the Amended Complaint merely pleads action that
“increased the likelihood” that Decedents would be unsafe —
action that categorically falls outside the state-created danger
exception. Golian, 282 F. Supp. 3d at 730.
While Plaintiffs raise credible doubts about the efficacy of
the March 25th Directive, a policy that may have raised the
likelihood of individuals contracting COVID-19 is entirely
“dissimilar from the state created dangers recognized in
[Second Circuit] precedents.” Lombardi, 485 F.3d at 80.
“[I]n each of those cases, a third party's criminal behavior
harmed the plaintiff after a government actor — always
a law enforcement officer — enhanced or created the
opportunity for the criminal act through some interactions or
relationship with the wrongdoer.” Id. Such is not the case
here. And the Second Circuit, “[m]indful of the Supreme
Court's admonition not to permit the Due Process Clause
to ‘transform every tort committed by a state actor into
a constitutional violation,’ ” has instructed courts that the
state-created danger doctrine should impose liability “with
considerable stringency.” Benzman, 523 F.3d at 127 (quoting
DeShaney, 489 U.S. at 202). Accordingly, this Court heeds the
Second Circuit's instructions and finds that Plaintiffs cannot
rely on the state-created danger exception as the basis for their
substantive due process claim.
iii. Shocking the Conscience
*10 Even were Plaintiffs to have pleaded conduct falling
within one of these two exceptions, they would still need
to allege that Defendants’ “behavior was ‘so egregious,
so outrageous, that it may fairly be said to shock the
contemporary conscience.’ ” Matican, 524 F.3d at 155
(quoting Lewis, 523 U.S. at 848 n.8). The conscience-
shocking standard “screens out all but the most significant
constitutional violations, ‘lest the Constitution be demoted
to ... a font of tort law.’ ” Id. (quoting Lewis, 523 U.S. at 848
n.8) (citing Paul v. Davis, 424 U.S. 693, 701 (1976)); see also
Daniels v. Williams, 474 U.S. 327, 333 (1986) (“[I]njuries
inflicted by governmental negligence are not addressed by
the [U.S.] Constitution[.]”). “[C]onduct exhibiting ‘deliberate
indifference’ to harm can support a substantive due process
claim,” though “ ‘[d]eliberate indifference that shocks in one
environment may not be so patently egregious in another.’ ”
Lombardi, 485 F.3d at 82 (quoting Lewis, 523 U.S. at 850).
“Negligent conduct does not qualify as conscious-shocking
behavior,” Golian, 282 F. Supp. 3d at 732 (citing Matican,
524 F.3d at 158), while “reckless conduct is evaluated on a
case-by-case basis,” id.
As is particularly important to the case at hand, reckless
conduct “does not qualify as conscious-shocking when
the state actors ‘were subjected to the pull of competing
obligations.’ ” Golian, 282 F. Supp. 3d at 732 (quoting
Matican, 524 F.3d at 159 (quoting Lombardi, 485 F.3d at
83)). In an analogous factual context, the Second Circuit
in Lombardi found that officials’ misstatements about the
dangers of environmental contaminants near Ground Zero
following the September 11, 2001 terrorist attacks did
not shock the conscience. The Court reasoned that public
officials in the aftermath of the attacks were “required to
make decisions using rapidly changing information about
the ramifications of unprecedented events in coordination
with multiple federal agencies and local agencies and
governments.” 485 F.3d at 82. The Lombardi Court was wary
of deterring decisive action in a public emergency, believing
instead that the threat of liability might lead officials to
“default to silence in the face of the public's urgent need
for information.” Id. at 84. Accordingly, it concluded that “a
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poor choice made by an executive official between or among
the harms risked by the available options is not conscience-
shocking merely because for some persons it resulted in grave
consequences that a correct decision could have avoided.” Id.
at 85. Put somewhat differently, the Lombardi Court found
that an executive may choose “the least of evils” without
shocking the conscience. Id. at 82. Such a decision is within
the province of the executive, unhindered by the Due Process
Clause.
For similar reasons to those outlined in Lombardi, this
Court finds that Defendants’ actions here fail to shock the
conscience. This is not to minimize the grief and hardship
that Plaintiffs have experienced. As in DeShaney itself,
“[t]he facts of this case are undeniably tragic.” 489 U.S.
at 191. But the law is clear that “when agency officials
decide how to reconcile competing governmental obligations
in the face of disaster, only an intent to cause harm
arbitrarily can shock the conscience in a way that justifies
constitutional liability.” Lombardi, 485 F.3d at 74-75; see
also Corr. Officers’ Benevolent Ass'n, Inc. v. City of New
York, No. 17 Civ. 2899 (LTS), 2018 WL 2435178, at *4
(S.D.N.Y. May 30, 2018) (“The Second Circuit, recognizing a
government's need to make [ ] difficult decisions, has held that
deliberately indifferent policy actions of government actors
cannot shock the conscience in a constitutional sense where
they seek to accommodate competing governmental interests
even if the decision-making official, aware of the risks to
a particular group, makes a poor choice resulting in grave
consequences.”).
Plaintiffs’ attempts to distinguish this action from Lombardi
are unavailing. Plaintiffs argue, for example, that this action
is distinct because they are not arguing that Defendants had
an affirmative duty to prevent Decedents from being infected
with COVID-19, but rather, that Defendants “increased the
danger and harm to these residents.” (Pl. Opp. 37). However,
as in Lombardi, Defendants in this action “were required
to make decisions using rapidly changing information about
the ramifications of unprecedented events in coordination”
with various other government agencies. 485 F.3d at 82.
(See DeRosa Br. 16; Cuomo Reply 4-5). In the wake of a
developing public health crisis, Defendants were “subject
to the pull of competing obligations,” such as the safety
of nursing home residents and the countervailing safety
concerns related to overcrowding hospitals. Lombardi, 485
F.3d at 83. Such a situation is the exact kind envisioned
by the Second Circuit in Lombardi. The law is intentionally
designed to ensure that due process liability to does not
“inhibit or control policy decisions of government agencies
[in circumstances such as these], even if some decisions could
be made to seem gravely erroneous in retrospect.” Id. at 84.
*11 Moreover, while Plaintiffs focus in their opposition brief
on arguing that the March 25th Directive violated substantive
due process, and do not address at length how the DOH Report
may also have done so (see Pl. Opp. 24-32), the Court briefly
notes that Plaintiffs have failed to plead a constitutional
violation relating to the DOH Report. Plaintiffs assert that
the DOH Report failed to provide “accurate and reliable
information during a public health emergency.” (Id. at 31).
However, for many of the same reasons already discussed,
Plaintiffs have failed to show how this conduct, even when
read in the light most favorable to them, constitutes action that
“shock[s] the contemporary conscience” — especially in the
context of an unfolding public health emergency. Lombardi,
485 F.3d at 84. For this reason as well, Plaintiffs have failed
to plead a substantive due process violation. 6
6 In their opposition brief, Plaintiffs argue for the
first time that the March 25th Directive should
be analyzed under a strict scrutiny standard. In
doing so, Plaintiffs aver that strict scrutiny applies
because the March 25th Directive was “not of
general applicability, [and] it imposed greater
strain on a specific group, i.e., vulnerable, elderly,
and frail nursing home residents.” (Pl. Opp. 14).
However, Plaintiffs misapprehend the law. To
begin, age is not a suspect classification and thus
rational basis review would govern the Court's
analysis. See We The Patriots USA, Inc. v. Conn.
Off. of Early Childhood Dev., 76 F.4th 130, 158 (2d
Cir. 2023) (“Under the Equal Protection Clause,
claims that the government has discriminated based
on age are typically subject to rational basis review
because age is not a suspect classification.”), cert.
denied, 144 S. Ct. 2682 (2024). What is more,
even if the Court were to apply the scrutiny-
based standard to Plaintiffs’ claims, it would apply
rational basis scrutiny and evaluate Plaintiffs’
claims under the deferential standard articulated in
Jacobson v. Massachusetts, 197 U.S. 11 (1905),
pursuant to which “state and local authorities are
granted substantial deference in enacting measures
‘to prevent the spread of contagious disease’ during
public health crisis.’ ” Jones v. Cuomo, 542
F. Supp. 3d 207, 217 (S.D.N.Y. 2021) (quoting
Jacobson, 197 U.S. at 35); see also We The
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Patriots USA, Inc. v. Hochul, 17 F.4th 266, 290
(2d Cir. 2021) (applying Jacobson to uphold
decision to require healthcare facility employees
to be vaccinated against COVID-19). Under such
a standard, Plaintiffs’ claims also fail because
Plaintiffs have not shown that the March 25th
Directive had no “real or substantial relation” to the
public health crisis. See, e.g., Clementine Co., LLC
v. Adams, 74 F.4th 77, 84 (2d Cir. 2023) (upholding
vaccination requirements that “plainly had a real
and substantial relation to the City's public health
goal of combatting the COVID-19 pandemic”).
b. Plaintiffs Have Failed to
Allege a Violation of the FNHRA
In the Amended Complaint, Plaintiffs summarily state that
Defendants “through their shocking actions and omissions,
interfered with the rights guaranteed by federal statutes and
regulations, like the Federal Nursing Home Reform Act, 42
U.S.C[. §]1396r, 42 U.S.C. [§] 1395i-3, and 42 [C.F.R. §]
483.” (AC ¶ 174). Defendants argue that this threadbare
reference to the statute is insufficient to plead a violation
of the FNHRA. (See Zucker Br. 8 n.5 (“Plaintiffs fail to
allege any specific rights under” FNHRA); DeRosa Br. 17
(arguing that Plaintiffs “do not even identify any FNHRA-
protected rights that were allegedly violated”); Cuomo Br.
18 n.25 (arguing that a general reference to FNHRA “is
insufficient to state a claim”)). The Court agrees that this
conclusory statement does not withstand a motion to dismiss,
and Plaintiffs cannot correct this pleading deficiency in their
opposition briefing. See, e.g., Goode v. Westchester County,
No. 18 Civ. 2963 (NSR), 2019 WL 2250278, at *2 (S.D.N.Y.
May 24, 2019) (“[T]he court can only consider facts raised
in the pleading and not those introduced in the opposition
papers.”); Maxim Grp. LLC v. Life Partners Holdings, Inc.,
690 F. Supp. 2d 293, 308 (S.D.N.Y. 2010) (confirming that
“a party cannot amend its pleading through its opposition
brief” (collecting cases)).
*12 However, even if Plaintiffs had provided sufficient
facts to support this allegation, the Court would still find
that Plaintiffs failed to state a Section 1983 claim based
on a violation of the FNHRA. While the Supreme Court
ruled in Health and Hospital Corporation of Marion County
v. Talevski, 599 U.S. 166, 184-86 (2023), that Congress
unambiguously created a private right of action for certain
FNHRA provisions, enforceable through Section 1983,
against nursing homes that receive Medicaid funds, the
decision does not mean that the FNHRA provides a basis for
plaintiffs to pursue claims against Defendants. Plaintiff fails
to show that the FNHRA can be enforced against Defendants,
who, unlike federally-funded nursing homes, are not the
recipients of federal funds, as defendants must be when
plaintiffs seek to enforce Spending Clause legislation against
them. See Davis Next Friend LaShonda D. v. Monroe Cnty.
Bd. of Educ., 526 U.S. 629, 641 (1999) (“The Government's
enforcement power may only be exercised against the funding
recipient[.]”); Washington v. Gonyea, 731 F.3d 143, 145-46
(2d Cir. 2013) (“Congress’[s] spending power ... allows the
imposition of conditions, such as individual liability, only
on those parties actually receiving the state funds.” (internal
citation omitted)).
In decisions issued after Talevski, courts have limited the
FNHRA's reach, finding, for instance, that the FNHRA does
not provide “a private right of action against private parties,”
including private nursing homes. Zietek v. Pinnacle Nursing
& Rehab Ctr., No. 21 Civ. 5488 (AT) (JLC), 2024 WL
243436, at *5 (S.D.N.Y. Jan. 23, 2024) (“[T]he Nursing Home
Reform Act's provisions do not confer a right of action on
[the plaintiff] that can be enforced against a private nursing
home[.]” (citing Prince v. Dicker, 29 F. App'x 52, 54 (2d Cir.
2002) (summary order))); see also Arbeeny v. Cuomo, No.
22 Civ. 2336 (LDH) (LB), 2025 WL 71729, at *8 (E.D.N.Y.
Jan. 10, 2025) (“Plaintiffs bring claims against state officials
for the issuance of public health regulations governing the
admission of residents to nursing homes and adult care
facilities in the midst of an unprecedented global pandemic.
Talevski does not contemplate the circumstances presented by
the instant case.”). Accordingly, because Plaintiffs have failed
to specify their FNHRA claim, or to demonstrate the basis
by which the statute allows for claims against Defendants,
Plaintiffs’ allegations related to FNHRA are insufficient to
support a claim under Section 1983.
c. Plaintiffs Have Failed to Allege Personal
Involvement by Defendant DeRosa
While the above pleading deficiencies are sufficient bases
to dismiss Plaintiffs’ Section 1983 claim, the claim arguably
also fails as to one or more Defendants for lack of personal
involvement. To review, “[i]t is well settled in this Circuit that
personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under
[Section 1983].” Shomo v. City of New York, 579 F.3d 176,
184 (2d Cir. 2009) (quoting Colon v. Coughlin, 58 F.3d
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865, 873 (2d Cir. 1995) (internal quotation marks omitted)).
“[A] plaintiff must directly plead and prove ‘that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution.’ ” Tangreti v.
Bachmann, 983 F.3d 609, 612 (2d Cir. 2020) (quoting Iqbal,
556 U.S. at 676). Plaintiffs “cannot rely on a separate test
of liability specific to supervisors.” Id. at 619. As such, it
is insufficient to allege “merely” that the defendant “held a
high position of authority,” Black v. Coughlin, 76 F.3d 72, 74
(2d Cir. 1996), or was “in the chain of command,” Thomas
v. Jacobs, No. 19 Civ. 6554 (CS), 2025 WL 662899, at *20
(S.D.N.Y. Feb. 28, 2025).
Among the three Defendants, DeRosa's arguments regarding
her lack of personal involvement in Plaintiffs’ claims are
particularly strong. (See DeRosa Br. 11-12). Indeed, Plaintiffs
conceded during the Court's pre-motion conference that
DeRosa's name does not appear “at the top” of the March
25th Directive. (Id. at 11). The Court believed this to be the
last word on the issue. However, in the Amended Complaint
filed after the conference, Plaintiffs continue to allege that
“Defendants Cuomo, Zucker, and DeRosa were at the top
of the deadly March 25th Directive.” (AC ¶ 64). In their
opposition brief, Plaintiffs attempt to argue that this was
inartful pleading, and that Plaintiffs intended to convey that
“Defendants were active and principal participants in the
creation of” the March 25th Directive. (Pl. Opp. 33 n.8).
The Court finds this explanation unconvincing, and urges
Plaintiffs to exercise greater care when alleging facts before
this Court. Moreover, in light of the concession that DeRosa's
name does not appear at the top of the March 25th Directive,
the Amended Complaint lacks specific factual allegations
tying DeRosa to the March 25th Directive or the development
of its underlying policy. Plaintiffs must do more than rely
upon DeRosa's former position of authority in New York
State government to plausibly allege personal involvement
sufficient to sustain a Section 1983 claim. See Tangreti,
983 F.3d at 618 (“[T]here is no special rule for supervisory
liability[.]”); Back v. Hastings on Hudson Union Free Sch.
Dist., 365 F.3d 107, 127 (2d Cir. 2004) (“An individual cannot
be held liable for damages under § 1983 ‘merely because he
held a high position of authority,’ but can be held liable if he
was personally involved in the alleged deprivation.” (internal
quotation marks omitted)). Accordingly, lack of personal
involvement provides an alternative basis for the dismissal of
Count I against DeRosa.
*13 Defendants Cuomo and Zucker similarly allege that
Plaintiffs’ claims should be dismissed against them because
Plaintiffs merely rely on (i) their titles and (ii) the placement
of their names at the top of the March 25th Directive
to demonstrate personal involvement in the March 25th
Directive and the DOH Report. (Cuomo Br. 14-15; Zucker
Br. 14-16). In doing so, Cuomo places particular weight
on Judge Hector Gonzalez's analysis in Mauro v. Cuomo,
wherein the court found no personal involvement of then-
Governor Cuomo in the issuance of a health advisory
that recommended nursing homes prohibit visitations during
COVID, except when medically necessary. No. 21 Civ. 1165
(HG) (ARL), 2023 WL 2403482 (E.D.N.Y. Mar. 8, 2023).
In that case, Judge Gonzalez reasoned that “[w]hile it is
true that Defendant Cuomo participated in issuing executive
orders and guidance regarding the COVID-19 pandemic, [the
nursing home] was responsible for enforcing those mandates
and had discretion in determining whether Plaintiffs qualified
for an exception under said guidance.” Id. at *5. However,
here, the Amended Complaint does more than allege that
Cuomo's and Zucker's names were on top of the advisory and,
instead, alleges that the two Defendants were involved with
the policy's actual administration. See Stone #1 v. Annucci,
No. 20 Civ. 1326 (RA), 2021 WL 4463033, at *9 (S.D.N.Y.
Sept. 28, 2021) (discussing how policymakers can still be
held liable post-Tangreti for their role in the “promulgation of
an unconstitutional policy”). For example, Zucker is alleged
to have spoken about the policy and to have been involved
in defending the DOH Report. (AC ¶¶ 125, 133). As such,
the Court cannot say that Cuomo and Zucker lacked personal
involvement in the March 25th Directive or the DOH Report.
Even so, however, this does not change the Court's ultimate
decision regarding dismissal of Count I, because Plaintiffs are
still unable to plead a violation of Section 1983 under any
purported theory of liability.
d. Plaintiffs Have Failed to Allege a
Conspiracy to Violate Section 1983
In addition to bringing a substantive claim for violation of
Section 1983, Plaintiffs allege in Count I that Defendants
“took part [i]n a conspiracy that resulted in the deprivation of
nursing home residents’ civil rights.” (AC ¶ 175). A plaintiff
bringing a Section 1983 conspiracy claim “must allege [i] an
agreement between a state actor and a private party; [ii] to
act in concert to inflict an unconstitutional injury; and [iii] an
overt act done in furtherance of that goal causing damages.”
Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d
Cir. 2002) (citing Pangburn v. Culbertson, 200 F.3d 65, 72
(2d Cir. 1999)). “In addition, ‘complaints containing only
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conclusory, vague, or general allegations that the defendants
have engaged in a conspiracy to deprive the plaintiff of
his constitutional rights are properly dismissed; diffuse and
expansive allegations are insufficient, unless amplified by
specific instances of misconduct.’ ” Id. at 325 (quoting
Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993)
(internal quotation marks omitted and alteration adopted)).
Rather, “[t]he facts alleged must constitute ‘a meeting of the
minds’ between defendants to show a conspiracy.” Marquez
v. Hoffman, No. 18 Civ. 7315 (ALC), 2021 WL 1226981,
at *23 (S.D.N.Y. Mar. 31, 2021) (quoting Webb v. Goord,
340 F.3d 105, 10-11 (2d Cir. 2003)). And of course, “[w]here
[the] [p]laintiff has failed to plead a claim for a violation of
her constitutional rights, her conspiracy claim fails as well.”
Id. (citing Dowd v. DeMarco, 314 F. Supp. 3d 576, 587
(S.D.N.Y. 2018)); see also Singer v. Fulton Cnty. Sheriff, 63
F.3d 110, 119 (2d Cir. 1995) (“[A]lthough the pleading of
a [Section 1983] conspiracy will enable a plaintiff to bring
suit against purely private individuals, the lawsuit will stand
only insofar as the plaintiff can prove the sine qua non of
a [Section] 1983 action: the violation of a federal right.”).
Here, Plaintiffs’ conspiracy claim necessarily fails because
Plaintiffs have not adequately pleaded a violation of their
constitutional or statutory rights. See, e.g., Curley v. Village of
Suffern, 268 F.3d 65, 72 (2d Cir. 2001). Moreover, Plaintiffs
fail to allege in a non-conclusory manner the overt acts and the
agreement that allegedly comprised this conspiracy. See Lee
v. Law Office of Kim & Bae, PC, 530 F. App'x 9, 10 (2d Cir.
2013) (summary order) (“Absent from [the plaintiff's] second
amended complaint are allegations, made in a non-conclusory
way, setting out the overt acts, and the agreement, that
allegedly comprised the conspiracy.”). Accordingly, insofar
as it is construed as a claim for conspiracy to violate Section
1983, Count I must also be dismissed.
e. Plaintiffs’ Claims Are Barred by Qualified Immunity
*14 Even if Plaintiffs had asserted a viable claim under
Section 1983 (which they have not), the claim would be
barred by qualified immunity. “Qualified immunity shields
government officials performing discretionary functions from
suits for money damages unless their conduct violates clearly
established law of which a reasonable official would have
known.” Nat'l Rifle Ass'n of Am. v. Vullo, 49 F.4th 700, 714
(2d Cir. 2022), vacated and remanded on other grounds,
602 U.S. 175 (2024). The doctrine is intended to “give[ ]
government officials the breathing room to make reasonable
even if mistaken, judgments and protects all but the plainly
incompetent or those who knowingly violate the law.” Id.
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
“The Supreme Court has instructed that ‘[q]ualified immunity
balances two important interests — the need to hold public
officials accountable when they exercise power irresponsibly
and the need to shield officials from harassment, distraction,
and liability when they perform their duties reasonably.” Vega
v. Semple, 963 F.3d 259, 272 (2d Cir. 2020) (quoting Pearson
v. Callahan, 555 U.S. 223, 231 (2009)). The defense will
shield federal and state officials from money damages unless
a plaintiff sufficiently pleads “[i] that the official violated a
statutory or constitutional right, and [ii] that the right was
‘clearly established’ at the time of the challenged conduct.”
Id. at 273 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011)). A defendant has the burden of proving the affirmative
defense of qualified immunity. See Gomez v. Toledo, 446 U.S.
635, 640-41 (1980).
As discussed previously, see supra in section B.1.a, the Court
finds that Plaintiffs have not sufficiently pleaded a qualifying
violation of their rights. Therefore, Plaintiffs clearly fail
to meet their burden under the first prong of the two-part
test to defeat a qualified immunity defense. In the interests
of completeness, however, the Court concludes that neither
Plaintiffs’ claimed constitutional rights nor their statutory
rights under the FNHRA were clearly established when the
March 25th Directive was issued. Thus, Plaintiffs’ Section
1983 claim is also barred by qualified immunity.
i. Constitutional Rights
Under the second prong of the qualified immunity analysis, “a
case directly on point” is not required “for a right to be clearly
established.” White v. Pauly, 580 U.S. 73, 78-79 (2017)
(per curiam) (internal quotation marks omitted). That being
said, “existing precedent must have placed the statutory or
constitutional question beyond debate.” Id. (emphasis added)
(quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)); see also
Douglas v. City of New York, No. 18 Civ. 9327 (KPF), 2022
WL 294075, at *8 (S.D.N.Y. Feb. 1, 2022) (“The Supreme
Court has ‘repeatedly stressed that courts must not define
clearly established law at a high level of generality, since
doing so avoids the crucial question whether the official acted
reasonably in the particular circumstances that he or she
faced.’ ” (quoting D.C. v. Wesby, 583 U.S. 48, 63-64 (2018))).
“A right is ‘clearly established’ when ‘[t]he contours of the
right [are] sufficiently clear that a reasonable official would
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understand that what he is doing violates that right.’ ” Vincent
v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013) (alterations in
original) (quoting Jackler v. Byrne, 658 F.3d 225, 242 (2d Cir.
2011)). Put differently, “an official is immune from liability
unless, under the particular circumstances the official faced,
any ‘reasonable offic[ial]’ would ‘have known for certain that
the conduct was unlawful’ under then-existing precedent.”
Liberian Cmty. Ass'n of Conn. v. Lamont, 970 F.3d 174,
187 (2d Cir. 2020) (alterations in original) (quoting Ziglar v.
Abbasi, 582 U.S. 120, 152 (2017)). Here, Plaintiffs’ alleged
constitutional violations fail to meet this standard because
“other infectious disease cases had [not] clearly articulated the
substantive due process standard” that Plaintiffs argue should
govern Defendants’ actions. Id. at 191.
*15 This precise conclusion was reached by Judge LaShann
DeArcy Hall in an analogous case in the Eastern District of
New York, which case also involved constitutional claims
against Defendants for their issuance of the March 25th
Directive. See Arbeeny v. Cuomo, 2025 WL 71729, at *1.
In that case, Judge DeArcy Hall determined that qualified
immunity barred the plaintiffs’ claims because the plaintiffs
“fail[ed] to cite to any case similar in fact to the one at hand
that would demonstrate, beyond debate, that these due process
rights were clearly established in the context of public health
policy decisions at the time of the issuance of the [March
25th Directive].” Id. at *10. Moreover, Judge DeArcy Hall
emphasized that qualified immunity is intended to “protect
officials when their jobs require them to make difficult on-the-
job decisions,” which is especially prevalent in the “context of
a public health emergency.” Id. (quoting DiBlasio v. Novello,
413 F. App'x 352, 356 (2d Cir. 2011) (summary order)).
The Court agrees with this analysis. As various courts have
held, “it is implausible that ‘every reasonable official’ would
have understood issuing or enforcing public health policies
[during the COVID-19 pandemic] violated the plaintiffs’
rights.” Bastian v. Lamont, No. 21 Civ. 1249 (JCH), 2022
WL 2477863, at *7 (D. Conn. July 6, 2022) (quoting
Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905)); see
also Estate of DeRosa v. Murphy, No. 22 Civ. 2301 (ESK)
(AMD), 2025 WL 249169, at *3 (D.N.J. Jan. 21, 2025)
(dismissing similar claims premised on a nearly identical
directive issued by the State of New Jersey because, in part,
plaintiff failed to plead a clearly established right at the
time of the challenged conduct); cf. Liner v. Hochul, No.
21 Civ. 11116 (ER), 2023 WL 358826, at *5 (S.D.N.Y. Jan.
23, 2023) (dismissing COVID-19-related claims based on
qualified immunity). And even if Defendants had violated
federal law, qualified immunity “shields government officials
from liability when they make reasonable mistakes about
the legality of their actions.” Sudler v. City of New York,
689 F.3d 159, 174 (2d Cir. 2012) (internal quotation marks
omitted). Accordingly, qualified immunity independently
bars Plaintiffs’ constitutional claims.
ii. The FNHRA
The Court likewise finds that Plaintiffs have failed to
demonstrate that the law around the FNHRA was clearly
established at the time the March 25th Directive was issued.
As Plaintiffs acknowledge, it was only the “[o]n the heels of”
the Supreme Court's decision in Talevski that there was “no
longer any doubt that FNHRA ‘can create 1983-enforceable
rights.’ ” (Pl. Opp. 18 (quoting Talevski, 599 U.S. at 180)).
Because that decision was issued three years after the March
25th Directive went into effect, the law could not have been
“clearly established” during the relevant time period.
This conclusion was also reached by Judge DeArcy Hall
in Arbeeny. When considering a Rule 12(b)(6) argument
that the plaintiffs’ claims under the FNHRA were barred by
qualified immunity, Judge DeArcy Hall noted that “[p]rior
to the Supreme Court's ruling in Talevski, courts around
the country, and within the Second Circuit, were split as
to whether the FNHRA conferred a private right of action
enforceable under Section 1983.” Arbeeny, 2025 WL 71729,
at *8. “This disagreement at the time of the issuance of the
[March 25th Directive] forecloses a finding that a reasonable
officer would have known that the issuance of the advisories
would violate residents’ rights under the FNHRA.” Id. This
Court agrees with Judge DeArcy Hall's thoughtful analysis,
which observes that “[i]t is axiomatic that for a case to provide
the basis to claim that the law articulated therein was clearly
established to defeat a claim of qualified immunity, the case
must predate the conduct at issue.” Id.; see also Reichle v.
Howard, 566 U.S. 658, 669-70 (2012) (noting that “[i]f judges
[ ] disagree on a constitutional question, it is unfair to subject
[officials] to money damages for picking the losing side of the
controversy” (internal quotation marks omitted)).
*16 Moreover, as discussed supra in section B.1.b, while
the Talevski decision confirmed that the FNHRA confers a
private right of action that can be enforced against state-
run nursing home facilities under Section 1983, “[t]his broad
proposition is insufficient to support a finding that the
Decedents’ rights under the FNHRA were clearly established
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with respect to public health regulations imposed by the
state.” Arbeeny, 2025 WL 71729, at *8; see also Estate of
DeRosa, 2025 WL 249169, at *3 (“Here, plaintiffs bring
claims against state officials for the issuance of promulgations
governing the admission of residents to nursing homes during
the unprecedented COVID-19 pandemic. Talevski neither
‘contemplate[s] the circumstances presented by the instant
case’ nor ‘place[s] the statutory or constitutional questions
raised in this case beyond debate.” (alterations in original)
(quoting Arbeeny, 2025 WL 71729, at *8)). Accordingly,
because the law was not settled at the time of the March
25th Directive, and even now Talevski does not put the
statutory questions beyond debate, Plaintiffs’ FNHRA claims
are precluded by qualified immunity.
Recognizing the insurmountable hurdle of qualified
immunity, Plaintiffs urge the Court to defer its judgment
on this question because “[t]here are issues of fact
and credibility that will need to be determined by the
jury, including the extent of each Defendants’ personal
involvement in the design and implementation of the [March
25th Directive].” (Pl. Opp. 41). However, “federal courts
around the country have granted state officials qualified
immunity at the motion to dismiss stage for restrictions
implemented during the COVID-19 pandemic.” Mauro, 2023
WL 2403482, at *6 (collecting cases); see also Whitfield
v. City of New York, No. 20 Civ. 674 (JMF), 2025 WL
327312, at *2 (S.D.N.Y. Jan. 29, 2025) (“[T]he Second Circuit
explained ... that it saw ‘no reason why even a traditional
qualified immunity defense may not be asserted on a Rule
12(b)(6) motion as long as the defense is based on facts
appearing on the face of the complaint[.]” (quoting McKenna
v. Wright, 386 F.3d 432, 436 (2d Cir. 2004))). The Court
takes the same approach here and concludes that it is clear
at the pleading stage that Defendants are entitled to qualified
immunity. For all of these reasons, the Court dismisses Count
I with prejudice.
2. The Court Declines to Exercise Supplemental
Jurisdiction over Plaintiffs’ State-Law Claims
A district court may decline to exercise supplemental
jurisdiction over state and city law claims if “the district
court has dismissed all claims over which it has original
jurisdiction.” 28 U.S.C. § 1367(c). Indeed, “in the usual case
in which all federal-law claims are eliminated before trial,
the balance of factors to be considered under the pendent
jurisdiction doctrine — judicial economy, convenience,
fairness, and comity — will point toward declining to exercise
jurisdiction over the remaining state-law claims.” Pension
Benefit Guar. Corp. ex rel. Saint Vincent Cath. Med. Ctrs. Ret.
Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 727
(2d Cir. 2013) (quoting Valencia ex rel. Franco v. Lee, 316
F.3d 299, 305 (2d Cir. 2003)); see also Klein & Co. Futures,
Inc. v. Bd. of Trade of City of New York, 464 F.3d 255, 262 (2d
Cir. 2006) (“It is well settled that where, as here, the federal
claims are eliminated in the early stages of litigation, courts
should generally decline to exercise pendent jurisdiction over
remaining state law claims.”).
Having dismissed Plaintiffs’ federal claim over which
the Court has original jurisdiction, the Court declines to
exercise supplemental jurisdiction over the remaining state-
law claims. At this stage in the litigation, judicial economy
will not be served by the Court retaining the state-law
claims, particularly because discovery has not begun and
Plaintiffs’ federal claim has been eliminated “prior to the
investment of significant judicial resources.” Kolari v. N.Y.-
Presbyterian Hospital, 455 F.3d 118, 123 (2d Cir. 2006).
Accordingly, Plaintiffs’ state-law claims for New York civil-
rights violations (Count II), conscious pain and suffering
(Count III), wrongful death (Count IV), gross negligence
(Count V), and intentional infliction of emotional distress
(Count VI) are dismissed without prejudice to their refiling
in state court.
3. The Court Will Not Grant Leave to Amend
*17 The remaining issue concerns further amendment
of Plaintiffs’ pleadings. On December 10, 2024, Plaintiffs
requested leave to file a second amended complaint. (Dkt.
#57). Defendants opposed this request, arguing that the flaws
in Plaintiffs pleadings were incurable. (Dkt. #60 at 2). The
Court ultimately denied Plaintiffs’ request, without prejudice
to its renewal after resolution of the instant motions. (Dkt.
#61).
“Rule 15(a)(2) of the Federal Rules of Civil Procedure
provides that a court ‘should freely give leave [to amend]
when justice so requires.’ ” Gorman v. Covidien Sales, LLC,
No. 13 Civ. 6486 (KPF), 2014 WL 7404071, at *2 (S.D.N.Y.
Dec. 31, 2014) (alterations in original) (quoting Fed. R. Civ.
P. 15(a)(2)). Consistent with this liberal amendment policy,
“[t]he rule in this Circuit has been to allow a party to amend
its pleadings in the absence of a showing by the nonmovant
of prejudice or bad faith.” Id. (alterations in original) (quoting
Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir.
1993)). That being said, “it remains ‘proper to deny leave
to replead where ... amendment would be futile.’ ” Gorman,
2014 WL 7404071, at *2 (quoting Hunt v. All. N. Am.
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Gov't Income Tr., Inc., 159 F.3d 723, 728 (2d Cir. 1998)).
Given the analysis above, the Court does not believe that
further amendment would remedy the pleading deficiencies
outlined in this Opinion. See Baines v. Nature's Bounty (NY),
Inc., No. 23-710-cv, 2023 WL 8538172, at *3 (2d Cir. Dec.
11, 2023) (summary order) (finding no abuse of discretion
in denying leave to amend where plaintiffs had “already
amended their complaint once in the face of a pre-motion
letter from Defendants,” and then “requested leave to amend
again in a single, boilerplate sentence without specifying
what allegations they could add or how amendment would
cure any deficiencies”); Binn v. Bernstein, No. 19 Civ. 6122
(GHW) (SLC), 2020 WL 4550312, at *34 (S.D.N.Y. July
13, 2020) (“To grant Plaintiffs leave to amend would be
allowing them a ‘third bite at the apple,’ which courts in
this district routinely deny.” (collecting cases)), report and
recommendation adopted, No. 19 Civ. 6122 (GHW), 2020
WL 4547167 (S.D.N.Y. Aug. 6, 2020). Accordingly, the Court
declines to grant Plaintiffs leave to amend.
CONCLUSION
Based upon the foregoing analysis, the Court hereby
GRANTS Defendants’ motions to dismiss the Amended
Complaint. The Court's sympathy for Plaintiffs and their
loved ones simply cannot supplant governing law. The Court
dismisses Count I with prejudice, and Counts II through VI
without prejudice.
SO ORDERED.
All Citations
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Jones v. Beth Israel Hospital, Not Reported in Fed. Supp. (2018)
2018 WL 1779344
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2018 WL 1779344
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Michael J. JONES, Jr., Plaintiff,
v.
BETH ISRAEL HOSPITAL, Defendant.
1:17-cv-3445-GHW
|
Signed 04/11/2018
|
Filed 04/12/2018
Attorneys and Law Firms
Michael J. Jones, East Elmhurst, NY, pro se.
Peter Joseph Fazio, Robert Lev Isabella, Aaronson Rappaport
Feinstein & Deutsch, LLP, New York, NY, for Defendant.
MEMORANDUM OPINION AND ORDER
GREGORY H. WOODS, United States District Judge
*1 Plaintiff Michael Jones, Jr. is currently incarcerated
for assaulting three New York City Police Department
(“N.Y.P.D.”) officers in the spring of 2017. Months after the
assault, Mr. Jones asserted that in the crucial hours leading
up to his altercation with the police, he was neglected and
discriminated against by employees in the Emergency Room
of Defendant Beth Israel Hospital, and that this mistreatment
was the catalyst for the violence that subsequently resulted.
He alleges that the medical services he received were
inadequate and wholly failed to address the mental health
difficulties he was experiencing and that he explained to
his attending doctors. Because of this poor treatment for his
mental health, and the unjust discrimination he experienced
due to his race and perceived financial status, Plaintiff
attempted to end his life that day by provoking the police.
After his failed suicide attempt and incarceration, Plaintiff has
filed this action pro se, bringing claims under 42 U.S.C. §
1983 (“Section 1983”), 42 U.S.C. § 1981 (“Section 1981”),
the Emergency Medical Treatment and Active Labor Act
(“EMTALA”), 42 U.S.C. § 1395dd, and New York state
law against Defendant. Defendant has moved to dismiss
the complaint. Because Beth Israel Hospital is not a “state
actor,” Plaintiff's Section 1983 claims against Defendant are
dismissed. Plaintiff's Section 1981 claim is also dismissed.
Plaintiff plausibly pleads a claim under the EMTALA,
however, and will have the opportunity to litigate that claim.
I. BACKGROUND 1
1 Unless otherwise noted, the facts are taken from the
complaint and Plaintiff's opposition to the motion
to dismiss and are accepted as true for the purposes
of this motion. See, e.g., Chambers v. Time Warner,
Inc., 282 F.3d 147, 152 (2d Cir. 2002); Walker v.
Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (“A
district court deciding a motion to dismiss may
consider factual allegations made by a pro se party
in his papers opposing the motion.”). However,
“the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable
to legal conclusions.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
Between March 6 and 7, 2017, Plaintiff was admitted to the
Emergency Room at Beth Israel Hospital for treatment after
a Metropolitan Transportation Authority (“MTA”) worker
threw hot coffee in his face. Complaint, ECF No. 1, ¶¶ II.C-
D. Plaintiff informed the doctor treating him for his physical
injury that he was also suffering from suicidal and homicidal
tendencies. Compl. ¶ II.D. Plaintiff has been on psychiatric
medication since 2005 and was “in and out of the psych
wards” of other New York City hospitals, including Bellevue,
Harlem Hospital, and Woodhull Hospital, for months leading
up to Plaintiff's presentment at Beth Israel. Pl.'s Letter in
Opposition to Mot. to Dismiss, ECF No. 27 (“Pl.'s Opp.”)
at ¶ 3, 5. In the emergency room, Plaintiff described his
personal circumstances to his attending physician—his kids
were taken from him by the Administration for Children's
Services (“ACS”), his younger brother had been murdered,
and his wife was using drugs and cheating on him. Id. ¶ 5. As
Plaintiff explained, he “had no real reason to live.” Id.
*2 Despite this information, the unidentified doctor
discharged Plaintiff and subsequently sent another person
to speak with him about “why and how [he] was feeling.”
Compl. ¶ II.D. Because Plaintiff was discharged “without
medical treatment for [his] mental state,” it became his “goal
to hurt a police officer [and] [he] wanted to commit suicide
by a N.Y.P.D. [officer] that day.” Id. Plaintiff acted on this
plan after being “force[d] out of the hospital”; he assaulted
three N.Y.P.D. officers. Compl. ¶¶ IID, III. Plaintiff was in
turn assaulted and injured by those officers, and the assault on
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Plaintiff continued even after the officers had restrained him
in handcuffs. Compl. ¶ III.
Plaintiff initiated this action with the filing of his complaint
on May 8, 2017, seeking damages in the amount of
$100,000,000.00, as well as payment of all medical bills in his
medical history and funding for surgery for “other damage.”
ECF No. 1. The Court authorized Plaintiff to proceed in
forma pauperis on August 18, 2017. ECF No. 6. During a
conference on October 31, 2017, the Court granted a stay of
discovery pending the briefing of, and the Court's decision of,
Defendant's motion to dismiss. ECF No. 17.
Defendant filed its motion to dismiss on November 14, 2017.
ECF No. 18. Plaintiff filed a letter in opposition on January
10, 2018. ECF No. 27. In that opposition, Plaintiff asserts
that “if [he] had been held overnight for suicide watch and
medicated[,] [he] would not have been in the position to be
arrested” and because the hospital “denied [him,] now [he
has] to pay with [his] life.” Id. ¶ 5. Nonetheless, Plaintiff
reduced the damages that he seeks to $150,000.00. Id. ¶ 2.
On January 25, 2018, Defendant filed a reply in support of its
motion to dismiss. ECF No. 32.
II. STANDARD OF REVIEW
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at
556). It is not enough for a plaintiff to allege facts that are
consistent with liability; the complaint must “nudge” claims
“across the line from conceivable to plausible.” Twombly,
550 U.S. at 570. “To survive dismissal, the plaintiff must
provide the grounds upon which his claim rests through
factual allegations sufficient ‘to raise a right to relief above
the speculative level.’ ” ATSI Commc'ns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550
U.S. at 555).
Determining whether a complaint states a plausible claim is
a “context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Iqbal,
556 U.S. at 679. The court must accept all facts alleged in the
complaint as true and draw all reasonable inferences in the
plaintiff's favor. Burch v. Pioneer Credit Recovery, Inc., 551
F.3d 122, 124 (2d Cir. 2008) (per curiam). However,
‘[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.’ A complaint must therefore contain more than
‘naked assertion[s] devoid of further factual enhancement.’
Pleadings that contain ‘no more than conclusions ... are not
entitled to the assumption of truth’ otherwise applicable to
complaints in the context of motions to dismiss.
DeJesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 87-88
(2d Cir. 2013) (alterations in original) (quoting Iqbal, 556
U.S. at 678-79). Thus, a complaint that offers “labels and
conclusions” or “naked assertion[s]” without “further factual
enhancement” will not survive a motion to dismiss. Iqbal, 556
U.S. at 678 (alteration in original) (citing Twombly, 550 U.S.
at 555, 557).
*3 Because Plaintiff is proceeding pro se, the Court must
liberally construe Plaintiff's allegations and “interpret[ ]
[them] to raise the strongest arguments that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474
(2d Cir. 2006) (per curiam) (internal quotation marks and
citation omitted); see also, e.g., Erickson v. Pardus, 551
U.S. 89, 94 (2007) (“A document filed pro se is to
be liberally construed....” (internal quotation marks and
citation omitted)); Nielsen v. Rabin, 746 F.3d 58, 63 (2d
Cir. 2014) (“Where ... the complaint was filed pro se, it
must be construed liberally to raise the strongest claims it
suggests.” (quoting Walker v. Schult, 717 F.3d 119, 124 (2d
Cir. 2013))). Nevertheless, “dismissal of a pro se complaint
is [ ] appropriate where a plaintiff has clearly failed to meet
the minimum pleading requirements.” Rahman v. Schriro, 22
F. Supp. 3d 305, 310 (S.D.N.Y. 2014) (citing Rodriguez v.
Weprin, 116 F.3d 62, 65 (2d Cir. 1997)).
III. DISCUSSION
A. Federal Claims Against Defendant
The Court construes Plaintiff's complaint to assert a claim
under Section 1983 for deliberate indifference to Plaintiff's
medical needs and a Fourteenth Amendment equal protection
claim, a claim under Section 1981, and a claim under the
EMTALA.
1. Section 1983 Claims
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Defendant moves to dismiss the Section 1983 claims on the
grounds that Beth Israel Hospital is not a state actor and
did not act under color of state law, and therefore cannot
be liable under Section 1983. The Court agrees and finds
that Defendant is a private actor excluded from the scope of
liability governed by Section 1983.
Section 1983 provides, in relevant part:
Every person who, under color of
any statute, ordinance, regulation,
custom, or usage, of any State or
Territory or the District of Columbia,
subjects, or causes to be subjected,
any citizen of the United States or
other person within the jurisdiction
thereof to the deprivation of any rights,
privileges, or immunities secured by
the Constitution and laws, shall be
liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress....
42 U.S.C. § 1983.
It is well established that “private conduct” is not controlled
by Section 1983, unless the “private entity's challenged
actions are ‘fairly attributable’ to the state.” McGugan v.
Aldana-Bernier, 752 F.3d 224, 229 (2d. Cir. 2014) (quoting
Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012)),
cert. denied, 135 S. Ct. 1703 (2015). Courts have found that
“a private entity acts under color of state law for purposes
of § 1983 when ‘(1) the State compelled the conduct [the
‘compulsion test’], (2) there is a sufficiently close nexus
between the State and the private conduct [the ‘close nexus
test’ or ‘joint action test’], or (3) the private conduct consisted
of activity that has traditionally been the exclusive prerogative
of the State [the ‘public function test’].’ ” Id. (alterations
in original) (quoting Hogan v. A.O. Fox Mem'l Hosp., 346
Fed.Appx. 627, 629 (2d Cir. 2009)); Sybalski v. Indep. Grp.
Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008).
“It is not enough, however, for a plaintiff to plead state
involvement in ‘some activity of the institution alleged to have
inflicted injury upon a plaintiff’; rather, the plaintiff must
allege that the state was involved ‘with the activity that caused
the injury’ giving rise to the action.” Sybalski, 546 F.3d at
257-58 (quoting Schlein v. Milford Hosp., Inc., 561 F.2d 427,
428 (2d Cir. 1977)).
a. The State Did Not Compel Defendant's Actions
Plaintiff's allegations do not suggest that the State of New
York compelled the conduct of which he complains. A
private entity may be considered a state actor under the state
compulsion test “only when [the State] has exercised coercive
power or has provided such significant encouragement, either
overt or covert, that the choice must in law be deemed to be
that of the State.” Doe v. Rosenberg, 996 F. Supp. 343, 348-49
(S.D.N.Y. 1998) (quoting Blum v. Yaretsky, 457 U.S. 991,
1004 (1982)), aff'd, 166 F.3d 507 (2d Cir. 1999), cert. denied,
528 U.S. 1144 (2000). Thus, absent allegations of significant
encouragement from the State, either overt or covert, a
plaintiff cannot establish a claim under the compulsion test.
See id. at 348. It is also established that while the law
authorizes a private hospital to perform its duties, it does not
compel the hospital's personnel specifically to do anything
“any more than repossession laws are passed because states
want to encourage creditors to repossess their debtors' goods.”
McGugan v. Aldana-Bernier, No. 11-cv-00342 (TLM), 2012
WL 1514777, at *4 (E.D.N.Y. Apr. 30, 2012) (quoting
Spencer v. Lee, 864 F.2d 1376, 1379 (7th Cir. 1989)), aff'd,
752 F.3d 224.
*4 Here, Plaintiff complains of Defendant's decision not
to intern him overnight under “suicide watch” and not to
prescribe psychiatric medication. These allegations suggest
that Plaintiff asserts he should have been committed. See
Pl.'s Opp. ¶ 5 (“I should have been put in the psych
ward.”). New York's Mental Hygiene Law, however, affords
private physicians “complete discretion in deciding whether
to commit an individual.” M.C. v. Cty. of Westchester, N.Y.,
No. 16-cv-3013 (NSR), 2018 WL 1275435, at *10 (S.D.N.Y.
Mar. 6, 2018) (citing Rosenberg, 996 F. Supp. at 349); see
McGugan, 752 F.3d at 229 (finding no state action where
“the state endowed [private] Defendants with the authority to
involuntarily hospitalize (and medicate) the plaintiff, but it
did not compel them to do so”). Plaintiff's submissions do not
otherwise suggest that the State took any action to infringe
on that discretion. Defendant's actions as alleged were thus
permissive under the law, but not mandatory, and therefore
not compulsory.
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b. Defendant's Actions Were Not
Jointly Undertaken with the State
The complaint asserts no facts that fit the requirements of the
close nexus test, as Plaintiff does not claim that state control
was close enough in proximity or specificity to Defendant's
alleged conduct to render it state action. See McGugan, 752
F.3d at 229. Courts have found a close nexus when the state
was alleged to be “intimately involved” in the decisions
of hospitals regarding treatment and discharge, or when
the private hospital in some way consults or contacts state
employees regarding a medical decision. McGugan, 2012
WL 1514777, at *6 (citing Jensen v. Lane City, 222 F.3d
570, 575 (9th Cir. 2000); Kia v. McIntyre, 235 F.3d 749,
757 (2d Cir. 2000)). Plaintiff's allegations here, however, say
nothing regarding the State's involvement in the decision to
discharge him without mental health treatment. Indeed, the
complaint suggests that the State was not involved; Plaintiff
was admitted to the emergency room because of coffee burns,
and it was Plaintiff, not a state official or agency, who spoke
with attending physicians regarding his mental state. There
are no allegations that the emergency room staff who attended
to Plaintiff relied on consultations with state employees
regarding the decision to discharge Plaintiff without further
mental health treatment.
While Defendant, as a hospital, operates in a “highly
regulated context,” this fact alone is insufficient to satisfy the
close nexus test and render Defendant a state actor for Section
1983 purposes. McGugan, 752 F.3d at 229; see Rosenberg,
996 F. Supp. at 352 (finding no close nexus between hospital
and State where the State had not “so far insinuated itself
into a position of interdependence with the [private party]
that it was a joint participant in the enterprise” (alteration
in original) (citation omitted)). Furthermore, while the state
licenses hospitals and doctors to practice medicine, this
also is not enough to create a sufficient nexus in order to
lend Defendant's conduct the “imprimatur” of state action.
Blum, 457 U.S. at 1003; see also id. at 1004-05 (explaining
that “[t]he mere fact that a business is subject to state
regulation does not by itself convert its action into that
of the State” for constitutional purposes and finding that
decisions of private nursing home employees to transfer
or discharge residents did not constitute state action when
the State was not responsible for those particular actions);
Rosenberg, 996 F. Supp. at 352-53 (concluding that, because
the State “merely licenses private physicians and hospitals to
commit involuntary commitments yet in no way influences
the decisions to commit, its relationship with the Hospital
Defendants is insufficient to pass the close nexus/joint action
test”).
c. Defendant Did Not Assume a
Traditionally Public Function
*5 Finally, Plaintiff does not allege that Defendant's relevant
conduct—providing, or electing not to provide, certain
medical services—is traditionally the exclusive prerogative
of the State. To plead state action under a public function
theory, a plaintiff must allege facts showing that “the private
entity assumed powers ‘traditionally exclusively reserved to
the State.’ ” Rosenberg, 996 F. Supp. at 353 (quoting Jackson
v. Metro. Edison Co., 419 U.S. 345, 352 (1974)). Indeed, even
“[t]he fact that the private party has powers coextensive with
the state is irrelevant to determine that state action exists.”
Id. (citing Harvey v. Harvey, 949 F.2d 1127, 1131 (11th Cir.
1992)).
Courts in this Circuit have recognized that private hospitals
“have not been ‘traditionally associated with sovereignty,’
and have long been relegated to the private domain, rather
than treated as ‘traditionally the exclusive prerogative of
the State.’ ” Jackson v. Barden, No. 12-cv-1069 (KPF),
2018 WL 340014, at *17 (S.D.N.Y. Jan. 8, 2018) (quoting
Schlein, 561 F.2d at 429); see also Heicklen v. U.S. Dep't
of Homeland Sec., No. 10-cv-2239 (RJH) (JLC), 2011 WL
3841543, at *7 (S.D.N.Y. Aug. 30, 2011) (“Generally, ‘[a]
private hospital is not considered a state ... actor’ for Section
1983 purposes.” (alterations in original) (quoting Urena v.
Wolfson, No. 09-cv-1107 (KAM) (LB), 2010 WL 5057208,
at *10 (E.D.N.Y. Dec. 6, 2010))); Liburd v. Bronx Lenbanon
Hosp. Ctr., No. 07-cv-11316 (HB), 2008 WL 3861352, at *7
(S.D.N.Y. Aug. 19, 2008) (“Courts have held that the actions
of private medical facilities are not ‘fairly attributable’ to the
government despite the presence of government regulation,
funding, or both.”); Amofa v. Bronx-Lebanon Hosp. Ctr.,
No. 05-cv-9230 (SHS), 2006 WL 3316278, at *4 (S.D.N.Y.
Nov. 13, 2006) (“Unless certain rare conditions exist, private
hospitals such as Bronx-Lebanon are not state actors for
purposes of Section 1983.”). Moreover, “the hospitalization
authority that the [mental hygiene law] bestows on hospitals
and physicians is not the sort of power traditionally reserved
for the State because ‘[t]he responsibility for [involuntary]
commitment lies with the physician as a private individual.’ ”
Jackson, 2018 WL 340014, *14 (second and third alterations
in original) (quoting Rosenberg, 996 F. Supp. at 353).
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In light of this precedent, the complaint fails to pass the public
function test on its face as it does not allege any facts that
suggest that the nature of the relevant conduct is traditionally
the exclusive prerogative of the state.
* * * *
In sum, Plaintiff has alleged insufficient facts to suggest that
Defendant has acted under color of state law. Given the well-
established law that private physicians are afforded discretion
in deciding whether to commit a patient; that State regulation
is by itself insufficient to show a joint enterprise between
the State and a private hospital; and that the provision of
mental health treatment is not a function traditionally within
the exclusive prerogative of the State, Plaintiff's Section 1983
claims against Defendant are dismissed with prejudice. 2
2 To the extent that Plaintiff brings claims against
Beth Israel Hospital in connection with the medical
treatment he has received while incarcerated,
Plaintiff has not pleaded the personal involvement
of Beth Israel Hospital in that treatment. The
“personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an
award of damages under § 1983.” Victory v. Pataki,
814 F.3d 47, 67 (2d Cir. 2016) (quoting Farrell
v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)). The
Second Circuit has defined “personal involvement”
to mean direct participation, such as “personal
participation by one who has knowledge of the
facts that rendered the conduct illegal,” or indirect
participation, such as “ordering or helping others to
do the unlawful acts.” Provost v. City of Newburgh,
262 F.3d 146, 155 (2d Cir. 2001) (footnote omitted)
(citation omitted). Even under the liberal pleading
standard for pro se submissions, the Plaintiff
has not sufficiently alleged the involvement of
this defendant in his medical treatment while
incarcerated. Therefore, setting aside Plaintiff's
failure to plead that Beth Israel Hospital is a state
actor under Section 1983, Plaintiff has also failed
to state a claim for deliberate indifference to his
medical needs while incarcerated on the basis of
his failure to plead the hospital's involvement in the
treatment of those medical needs.
2. Section 1981 Claim 3
3 Defendant argues in its reply that the claims
based on racial discrimination were not timely
and therefore should not be considered by the
Court as they were not included in the original
complaint and only raised in Plaintiff's opposition.
Indeed, it is firmly established that “[n]ew claims
not specifically asserted in the complaint may not
be considered by courts when deciding a motion
to dismiss.” Bernstein v. City of New York, No.
06-cv-895 (RMB), 2007 WL 1573910, at *10
(S.D.N.Y. May 24, 2007) (alteration in original)
(quoting Lerner v. Forster, 240 F. Supp. 2d 233,
241 (E.D.N.Y. 2003)). However, this tenet does not
apply to pro se pleadings. See Walker, 717 F.3d
at 122 n.1 (“A district court deciding a motion to
dismiss may consider factual allegations made by
a pro se party in his papers opposing the motion.”).
*6 Plaintiff's allegations that he was denied medical services
on the basis of his race suggest that he brings claims under
Section 1981. Section 1981 provides, in relevant part, that
“[a]ll persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make
and enforce contracts, to sue, be parties, give evidence, and
to the full and equal benefit of all laws and proceedings
for the security of persons and property as is enjoyed by
white citizens.....” 42 U.S.C. § 1981(a). To state a claim
under Section 1981, a plaintiff must allege (1) that the
plaintiff is a member of a racial minority; (2) an intent to
discriminate on the basis of race by the defendant; and (3)
that the discrimination concerned one or more of the activities
enumerated in the statute, i.e., make and enforce contracts,
sue and be sued, give evidence, etc. Brown v. City of Oneonta,
221 F.3d 329, 339 (2d Cir. 2000); Mian v. Donaldson, Lufkin
& Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (per
curiam).
Plaintiff's allegations suggest a Section 1981 claim based on
Defendant's discriminatory interference with his right to the
“equal benefit of all laws and proceedings for the security
of persons and property.” 42 U.S.C. § 1981(a); see Phillip
v. Univ. of Rochester, 316 F.3d 291, 294-98 (2d Cir. 2003)
(discussing contract-clause claims and equal-benefit-clause
claims under Section 1981 and describing racially motivated
torts as basis for equal-benefit claims). Unlike in the case of
claims brought under Section 1983, the Second Circuit has
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held that Section 1981 does not require state action for equal-
benefits claims. See Phillip, 316 F.3d at 297-98; 42 U.S.C. §
1981(c) (“The rights protected by this section are protected
against impairment by nongovernmental discrimination and
impairment under color of State law.” (emphasis added)).
Rather, Section 1981 plaintiffs bringing equal-benefit claims
must “identify a relevant law or proceeding for the ‘security
of persons and property’ ” and establish that “defendants have
deprived them of ‘the full and equal benefit’ of this law or
proceeding.” Phillip, 316 F.3d at 298 (quoting 42 U.S.C. §
1981(a)); see Pierre v. J.C. Penney Co., Inc., 340 F. Supp. 2d
308, 310-13 (E.D.N.Y. 2004) (discussing nexus requirement).
The Second Circuit has declined to define the scope of “laws
and proceedings for the security of persons and property.”
Phillip, 316 F.3d at 298 (“We do not here attempt to define
the universe of laws and proceedings for the security of
persons and property, believing this task best resolved case
by case.”); see Corbett v. City of New York, No. 11-cv-3549
(CBA) (VMS), 2013 WL 5366397, at *20 (E.D.N.Y. Sept.
24, 2013) (“There is little case law interpreting the equal
benefit provision of Section 1981, and the Second Circuit has
declined to give bright-line guidance as to what activity falls
within the equal benefit language.” (citation omitted)). Phillip
did, however, provide some insight into the types of laws
that likely fall within the scope of Section 1981. Examining
Section 1981’s legislative history, Phillip noted that Congress
expressed particular “concern over private acts motivated by
racial discrimination.” Phillip, 316 F.3d at 295. For example,
Congress considered reports that “hatred toward the negro
as a freeman is intense among the low and brutal, who are
the vast majority. Murders, shooting, whippings, robbing, and
brutal treatment of every kind are daily inflicted upon them.”
Id. (quoting Cong. Globe, 39th Cong., 1st Sess. 94 (1865)).
The “fundamental rights” that were to be protected by the
statute thus included “the enjoyment of life and liberty” and
the freedom to “pursue and obtain happiness and safety.” Id.
(quoting Cong. Globe, 39th Cong., 1st Sess. 339, 475 (1866)).
In light of Section 1981’s legislative history, state laws
designed to protect medical patients from physicians'
negligence, such as New York's medical malpractice laws
at issue here, may fall within the ambit of laws protecting
the security of persons under Section 1981. The Court need
not decide at this time whether those laws are in fact within
the purview of the statute, however, because Plaintiff fails to
meet the gating requirement for Section 1981 claims. While
Plaintiff alleges that Defendant refused to treat him because
of his race, he fails to identify his race. Without that fact,
the Court cannot conclude that Plaintiff satisfies the first
and threshold element of his claim. See Brown, 221 F.3d at
339 (noting that Section 1981 plaintiffs must allege that they
belong to a racial minority); Corbett, 2013 WL 5366397, at
*21 (finding that plaintiff failed to satisfy the first element
of his Section 1981 claim when he pleaded that he was
a Caucasian male). 4 Accordingly, Plaintiff's Section 1981
claim is dismissed.
4 The Court notes that Plaintiff's allegations
regarding Defendant's racial motivation would be
sufficient to withstand dismissal at this stage
if Plaintiff had pleaded that he belongs to a
racial minority. Plaintiff alleges that Defendant's
physicians “refused to treat [him] because of
[his] race.” Pl.'s Opp. ¶ 4. This allegation
coupled with Plaintiff's allegations explaining
Defendant's conduct are sufficient. See Phillip, 316
F.3d at 298 (finding allegations sufficient where
they described in detail the defendants' actions
and alleged that defendants “selected them for
maltreatment ‘solely because of their color’ ”);
Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir.
2008) (citing Phillip and holding that plaintiff
sufficiently pleaded disparate treatment on account
of her race by alleging that she “is an African
American female,” describing defendant's action
with respect to plaintiff's loan application, and
alleging that she “was treated differently from
similarly situated loan applicants ... because of her
race, sex, and the location of the property in a
predominantly African-American neighborhood”);
cf. Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir.
1994)(affirming dismissal of Section 1981 claim
where plaintiff's allegations did nothing to connect
his race with defendant's conduct); Johnson v.
City of New York, 669 F. Supp. 2d 444, 450
(S.D.N.Y. 2009) (“The mere fact that plaintiff and
defendants are of different races, standing alone, is
simply insufficient as a factual pleading to allege
racially motivated discrimination for purposes of a
plausible section 1981 claim.”).
3. Claims Under the Emergency Medical
Treatment and Active Labor Act
*7 In addition to Section 1981 and 1983 claims, Plaintiff's
complaint may be construed to allege a breach of the
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EMTALA. The EMTALA, commonly referred to as the
“Patient Anti-Dumping Act,” applies to all hospitals that
participate in the federal Medicare program and that have
emergency departments. Hardy v. N.Y. City Health & Hosp.
Corp., 164 F.3d 789, 792 (2d Cir. 1999). The EMTALA
requires that “if a patient comes to a hospital emergency
department and requests treatment for a medical condition,
the hospital must screen the patient to determine if he has
an emergent condition and examine and treat a patient in
such condition ‘as may be required to stabilize the medical
condition’ or provide for the safe transfer of the patient to
another hospital.” Lorenz v. Managing Dir., St. Luke's Hosp.,
No. 09-cv-8898 (DAB) (JCF), 2010 WL 4922267, at *8
(S.D.N.Y. Nov. 5, 2010) (quoting 42 U.S.C. § 1395dd(a), (b)
(1)), report and recommendation adopted, No. 09-cv-8898
(DAB), 2010 WL 4922541 (S.D.N.Y. Dec. 2, 2010). The
statute was enacted to ensure that “hospitals [ ] provide
medical screening and stabilizing treatment to individuals
seeking emergency care in a nondiscriminatory manner.” Id.
(alteration in original) (quoting Byrne v. Cleveland Clinic,
684 F. Supp. 2d 641, 651 (E.D. Pa. 2010)). The Act
accordingly imposes two principal obligations on hospitals.
First, it requires that when an individual seeks treatment in
a hospital's emergency room, “the hospital must provide for
an appropriate medical screening examination ... to determine
whether or not an emergency medical condition” exists. 42
U.S.C. § 1395dd(a). Second, if the screening examination
reveals the presence of an emergency medical condition, the
hospital ordinarily must “stabilize the medical condition”
before transferring or discharging the patient. Id. § 1395dd(b)
(1)(A).
The EMTALA has its limits, however. The Act “is not a
substitute for state law on medical malpractice. It was not
intended to guarantee proper diagnosis or to provide a federal
remedy for misdiagnosis or medical negligence.” Neeseman
v. Mt. Sinai West, No. 17-cv-1766 (LGS), 2018 WL 626358, at
*4 (S.D.N.Y. Jan. 30, 2018) (quoting Hardy, 164 F.3d at 792);
see 42 U.S.C. § 1395dd(f) (“The provisions of this section
do not preempt any State or local law requirement....”);
Lorenz, 2010 WL 4922267, at *8 (The EMTALA was “not
intended to create a federal malpractice statute or cover cases
of hospital negligence.” (citation omitted)); Baber v. Hosp.
Corp. of Am., 977 F.2d 872, 880 (4th Cir. 1992) (“Questions
regarding whether a physician or other hospital personnel
failed properly to diagnose or treat a patient's condition are
best resolved under existing and developing state negligence
and medical malpractice theories of recovery.”).
Thus, “[i]n order to state a claim under the EMTALA, a
plaintiff must allege that he went to the emergency room
of a participating hospital seeking treatment for a medical
condition, and that the hospital did not adequately screen him
to determine whether he had an emergency medical condition,
or discharged or transferred him before such a condition had
been stabilized.” Kolari v. New York-Presbyterian Hosp., 382
F. Supp. 2d 562, 573-574 (S.D.N.Y. 2005), vacated in part on
other grounds, 455 F.3d 118 (2d Cir. 2006); see also Fisher
ex rel. Fisher v. New York Health and Hosps., Corp., 989 F.
Supp. 444, 448 (E.D.N.Y. 1998) (same).
a. Failure to Screen
EMTALA's requirement that individuals seeking emergency
care receive an “appropriate medical screening examination”
obligates hospitals to “apply uniform screening procedures
to all individuals coming to the emergency room.” Matter of
Baby K, 16 F.3d 590, 595 (4th Cir.), cert. denied, 513 U.S.
825 (1994); see Baber, 977 F.2d at 879; Holcomb v. Monahan,
30 F.3d 116, 117 (11th Cir. 1994) (holding that EMTALA's
screening provision “requires a hospital to provide indigent
patients with a medical screening similar to one which they
would provide any other patient”).
Here, Plaintiff's allegations suggest that he brings a claim
under the EMTALA not for failure to screen, but for failure
to stabilize his emergency medical condition. Plaintiff alleges
that he was seen by an emergency room physician, who
directed another hospital employee to speak with Plaintiff
regarding “why and how [he] was feeling.” Compl. ¶ II.D.
Plaintiff's allegations regarding the hospital's financial and
racial discrimination against him are pleaded in connection
with Defendant's failure to medicate him and intern him, and
not in connection with the screening itself. Therefore, the
Court reads Plaintiff's complaint as raising a claim under the
EMTALA for the hospital's failure to stabilize him before
discharging him.
b. Failure to Stabilize
*8 The EMTALA requires “such treatment as may be
required to stabilize the medical condition,” 42 U.S.C. §
1395dd(b)(1)(A), and forbids the patient's release unless
his condition has “been stabilized,” id. § 1395dd(c)(1).
The statute defines “emergency medical condition” as “a
medical condition manifesting itself by acute symptoms
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of sufficient severity (including severe pain) such that the
absence of immediate medical attention could reasonably
be expected to result in ... [inter alia] placing the health
of the individual ... in serious jeopardy[.]” Id. § 1395dd(e)
(1)(A)(i). An acute psychiatric condition can qualify as an
“emergency medical condition” under EMTALA. See 42
C.F.R. § 489.24(b) (defining “emergency medical condition”
to include “psychiatric disturbances and/or symptoms of
substance abuse”); Thomas v. Christ Hosp. and Med. Ctr.,
328 F.3d 890, 893-94 (7th Cir. 2003) (“Once an emergency
medical condition is detected, the hospital must act to stabilize
the condition—whether physical or psychiatric—before the
patient can be transferred or released”) (citing 42 U.S.C. §
1395dd).
A patient with an emergency medical condition is “stabilized”
when “no material deterioration of the condition is likely,
within reasonable medical probability, to result from or occur
during” the patient's release from the hospital. 42 U.S.C. §
1395dd(e)(3)(B). Thus, the EMTALA requires a hospital to
treat a patient with an emergency condition in such a way
that, upon the patient's release, no further deterioration of the
condition is likely. Moses v. Providence Hosp. & Med. Ctrs.,
Inc., 561 F.3d 573, 582 (6th Cir. 2009). A psychiatric patient is
considered stable for purposes of discharge under EMTALA
“when he/she is no longer considered to be a threat to him/
herself or others.” Thomas, 328 F.3d at 893 (applying the
Health Care Financing Administration's definition of stability
for psychiatric patients).
Importantly, though, a stabilization claim exists only when
“the patient had an emergency condition” and “the hospital
actually knew of that condition.” Baber, 977 F.2d at 883. The
Act does not hold hospitals accountable for failing to stabilize
conditions of which they are unaware, or even conditions of
which they should have been aware. Id.; accord Vickers v.
Nash Gen. Hosp., Inc., 78 F.3d 139, 145 (4th Cir. 1996).
Here, Plaintiff states that he informed his attending physician
that he was both suicidal and homicidal. Compl. ¶ II.D. He
also alleges that he described in detail the basis for his mental
state to his attending doctor and that he advised “the doctors in
Beth Israel [he] was going to kill [himself] or some one [sic]
else” and he “had no real reason to live.” Pl.'s Opp. ¶ 5. Given
Plaintiff's allegations that he informed multiple physicians
of his suicidal sentiment, the Court is satisfied that Plaintiff
plausibly pleads that he presented with an emergency medical
condition and that Defendant actually knew of his condition.
Plaintiff's complaint also sufficiently suggests that he was
discharged prior to being stabilized. He alleges that, despite
having informed multiple emergency department physicians
of his mental state and his desire to kill, he was discharged
without medication or further observation. Compl. ¶ II.D.;
Pl.'s Opp. ¶ 5. Immediately after Plaintiff was discharged,
he assaulted three N.Y.P.D. officers. Compl. ¶ III. Therefore,
drawing all reasonable inferences in favor of Plaintiff, and
reading his submissions to raise the strongest claims they
suggest, the Court is satisfied that Plaintiff has stated a claim
under the EMTALA for Defendant's failure to stabilize him
before discharging him. See, e.g., Mahone v. Med. Ctr., Inc.,
No. 17-cv-113 (MSH,) 2017 WL 6559911, at *8-9 (M.D. Ga.
Dec. 22, 2017) (finding failure to stabilize claim plausibly
pleaded when plaintiff alleged “suicidal ideations, depression,
PTSD, and hallucinations” that were not stabilized prior to
plaintiff's transfer); Carlisle v. Frisbie Mem'l Hosp., 888
A.2d 405, 414 (N.H. 2005) (holding that jury questions
existed on EMTALA claims where plaintiff alleged hospital
transferred her to jail without proper stabilization while she
was intoxicated and suicidal).
B. State Claims against Defendant
*9 Plaintiff's complaint, construed broadly, asserts claims
under New York state law for medical malpractice,
negligence, and discrimination.
1. Medical Malpractice and Negligence Claims
Under New York law, “there is no prohibition against
simultaneously pleading both an ordinary negligence cause
of action and one sounding in medical malpractice.” Ingutti
v. Rochester Gen. Hosp., 44 N.Y.S.3d 274, 275-76 (4th Dep't
2016); see also Piccoli v. Panos, 13 N.Y.S.3d 478, 479 (2d
Dep't 2015); Miller ex rel. Miller v. Albany Med. Ctr. Hosp.,
464 N.Y.S.2d 297, 299 (3d Dep't 1983). “It is simply beyond
cavil ‘that an action for personal injuries may be maintained,
in the proper case, on the dual theories of medical malpractice
or simple negligence where a person is under the care and
control of a medical practitioner or a medical facility.’ ”
Ingutti, 44 N.Y.S.3d at 276 (quoting Twitchell v. MacKay, 434
N.Y.S.2d 516, 518 (4th Dep't 1980)). “Moreover, in a proper
case, both theories may be presented to the jury.” Id.
In determining whether an action sounds in medical
malpractice or simple negligence, the critical question is the
nature of the duty to the plaintiff which the defendant is
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alleged to have breached. When the duty arises from the
physician-patient relationship or is substantially related to
medical treatment, the breach gives rise to an action sounding
in medical malpractice, not simple negligence. La Russo
v. St. George's Univ. Sch. of Med., 936 F. Supp. 2d 288,
304 (S.D.N.Y. 2013) (citations omitted), aff'd, 747 F.3d 90
(2d Cir. 2014); see also Sweeney v. Presbyterian/Columbia
Presbyterian Med. Ctr., 763 F. Supp. 50, 52 (S.D.N.Y. 1991)
(discussing the difference, under New York law, between
negligence and malpractice claims in a medical context, and
noting that the New York Court of Appeals has held that
“conduct which constitutes medical treatment or bears a
substantial relationship to the rendition of medical treatment
by a licensed physician is medical malpractice” (internal
citation and quotation marks omitted)).
a. Medical Malpractice
To establish liability in a medical malpractice action under
New York law, “a plaintiff must prove (1) the standard of
care in the locality where the treatment occurred, (2) that the
defendant breached that standard of care, and (3) that the
breach of the standard was the proximate cause of the injury.”
Zak v. Brookhaven Mem'l Hosp. Med. Ctr., 863 N.Y.S.2d 821,
822 (2d Dep't 2008) (quoting Berger v. Becker, 709 N.Y.S.2d
418 (2d Dep't 2000). To survive a motion to dismiss, a
plaintiff must allege the defendant's deviation from “accepted
medical practice” and a causal nexus between the deviation
and the harm suffered by the plaintiff. Koulkina v. City of
New York, 559 F. Supp. 2d 300, 327-28 (S.D.N.Y. 2008));
see also Lorenz, 2010 WL 4922267, at *11 (finding that
the plaintiff adequately pleaded medical malpractice when
he alleged that he was a patient at the defendant hospital,
that hospital physicians “made treating decisions that might
plausibly be deviations from accepted medical practice,” and
that those decisions caused him injury). 5
5 The Court understands Plaintiff's medical
malpractice claims against the hospital to be
asserted on the basis of the hospital's vicarious
liability for the malpractice of its doctors. See
Kavanaugh by Gonzales v. Nussbaum, 71 N.Y.2d
535, 546 (1988) (noting that “[v]icarious liability
applies to hospitals and physicians” and finding
hospital vicariously liable for negligence of its
employee physician); Hill v. St. Claire's Hosp.,
67 N.Y.2d 72, 75 (1986) (holding that owner of
medical clinic held out to the public as offering
medical services could be held vicariously liable
for malpractice of treating doctor).
*10 Plaintiff alleges that he was “discharged without
medical treatment for [his] mental state and because of that
[his] goal was to hurt a police officer.” Compl. ¶ II.D. He
also alleges that, due to his mental state, he “did not control
[his] emotions and it lead [sic] to careless actions,” namely his
assault of the three police officers. Pl.'s Opp. ¶ 5. Defendant
does not contest that Plaintiff has pleaded an actionable injury.
Therefore, the Court accepts, for purposes of this motion, that
Plaintiff has sufficiently pleaded an injury. 6
6 To the extent that Plaintiff's medical malpractice
and negligence claims are premised on physical
injuries that Plaintiff received during the alleged
assault by the police officers, those claims
contravene public policy and, therefore, necessarily
fail. The New York Court of Appeals has held
that “when the plaintiff has engaged in activities
prohibited, as opposed to merely regulated, by
law, the courts will not entertain the suit if the
plaintiff's conduct constituted a serious violation
of the law and the injuries for which he seeks
recovery were the direct result of that violation.”
Barker v. Kallash, 63 N.Y.2d 19, 24 (1984); see
Hernandez v. Yoon, 661 N.Y.S.2d 753, 754 (N.Y.
Sup. Ct. 1997) (“Cases where recovery has been
barred or would be barred because the plaintiff was
engaged in criminal activity at the time of injury
frequently involve conduct dangerous to physical
well-being.”). At the time that Plaintiff alleges he
was assaulted by the officers, he was engaged in
the criminal activity of assaulting them. Plaintiff's
actions were not only regulated, but prohibited by
law. See N.Y. Penal Law § 120.08. Accordingly,
Plaintiff is precluded from pursuing compensation
for any damages that were caused by the officers'
acts in allegedly assaulting and arresting him.
Turning to the other elements of Plaintiff's claim, Plaintiff
does not expressly allege the applicable standard of care.
Rather, he states that he “should have been medicated” yet
“was not” and that “by law they were not suppose [sic] to
release” him in the condition in which he was upon discharge.
Pl.'s Opp. ¶ 5. He also explains that he has been on psychiatric
medication since 2005, had been “in and out of the psych
wards” at various other hospitals, and that the emergency
room physicians at Defendant's hospital “knew” that he
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needed help. Id. ¶¶ 3, 5. Plaintiff described his homicidal and
suicidal thoughts to the physicians, and to his treating doctor
in detail. Id.; Compl. ¶ II.D. Nonetheless, the only task that
Defendant is alleged to have undertaken to address Plaintiff's
mental state was to direct an individual to speak with Plaintiff
about his feelings. Compl. ¶ II.D. Plaintiff alleges this was
insufficient, as he left the hospital with suicidal thoughts
intact and assaulted police officers in the hope that he would
fall victim to their deadly assault in return. Id.; Pl.'s Opp. ¶ 5.
These allegations suffice to plausibly plead a deviation from
the standard of care. They suggest that the applicable standard
of care required admission for psychological observation
—as other New York City hospitals had admitted Plaintiff
to their psych wards—or medication—as Plaintiff had been
on psychiatric drugs for twelve years—and that Defendant
deviated from that standard of care by releasing Plaintiff after
only having an employee speak with him about his feelings.
Plaintiff's submissions also plausibly plead that Defendant's
deviation from the standard of care was the proximate cause
of his injury—his inability to control his emotions and his
ongoing suicidal ideations that led to his attack of the N.Y.P.D.
officers. The complaint alleges that it was because of his
lack of medication and his early discharge that he desired to
commit suicide by cop, and that the assault on the officers
was carried out the same day that Plaintiff was discharged
from Defendant's hospital. Compl. ¶ II.D; Pl.'s Opp. ¶ 5.
These allegations suggest a causal link between Defendant's
alleged deviation from the standard of care and the harm
suffered by Plaintiff and are sufficient to survive a motion
to dismiss. See Rennalis v. Alfredo, No. 12-cv-5300 (KMK),
2015 WL 5730332, at *13 (S.D.N.Y. Sept. 30, 2015) (finding
allegations that defendant denied plaintiff scans and a hearing
test and that plaintiff suffered severe degenerations with
worsening pain to his spine sufficient under New York law
to plead causation in connection with medical malpractice
claim); Gale v. Smith & Nephew, Inc., 989 F. Supp. 2d
243, 252 (S.D.N.Y. 2013) (finding allegations of causation
sufficient at the pleading stage where a “reasonable reading”
of the complaint showed that plaintiff alleged the defendant
was “at least in part” responsible for surgery and aftercare
that caused his injuries); cf. Imperati v. Lee, 18 N.Y.S.3d 615,
616 (1st Dep't 2015) (finding conclusory allegation of causal
connection insufficient).
*11 Accordingly, Defendant's motion to dismiss the medical
malpractice claim is denied. 7
7 Defendant makes much of Plaintiff's unlikely
ability to retain a medical expert to prove his
medical malpractice claim, including the causal
link between the alleged deviation from the
standard of care and Plaintiff's injury. See Def.'s
Mem. in Supp. of Mot. to Dismiss, ECF No.
20 (“Def.'s Mem.”) at 15; Def.'s Reply, ECF
No. 32 (“Def.'s Reply”) at 8-9. The Court is
not required at this stage to decide whether a
deviation from the standard of care or proximate
causation exist—only whether they are plausibly
pleaded. Nonetheless, the Court acknowledges
that expert testimony may be required at future
stages of the litigation of Plaintiff's claims. See
Deadwyler v. N. Shore Univ. Hosp. at Plainview,
866 N.Y.S.2d 306, 307 (2d Dep't 2008) (“Expert
testimony is necessary to prove a deviation from
accepted standards of medical care and to establish
proximate cause.” (quoting Nichols v. Stamer, 854
N.Y.S.2d 220, 222 (2d Dep't 2008))).
b. Negligence
While dual claims for medical malpractice and negligence
may be brought under New York law, a proper basis for each
is required. Ingutti, 44 N.Y.S.3d at 276. Under New York
law, conduct that “ ‘constitutes medical treatment or bears a
substantial relationship to the rendition of medical treatment
by a licensed physician’ is medical malpractice, whereas
conduct such as a claim that a hospital failed to provide
a patient with competent and qualified nurses or failed to
promulgate rules requiring doctors to take adequate medical
histories from patients sounds in negligence.” Sweeney, 763
F. Supp. at 52 (quoting Bleiler v. Bodnar, 489 N.Y.S.2d 885,
889 (1985)); see also La Russo, 747 F.3d at 101 (affirming
dismissal of negligence claim that was substantially related to
medical treatment and “merely a reformulation of [plaintiff's]
medical malpractice claim”); Friedmann v. N.Y. Hosp.-
Cornell Med. Ctr., 884 N.Y.S.2d 733, 734 (1st Dep't 2009)
(“Simple negligence principles are applicable to those cases
where the alleged negligent act may be readily determined
by the trier of fact based on common knowledge. However,
where the directions given or treatment received by the
patient is in issue, consideration of the professional skill and
judgment of the practitioner or facility is required and the
theory of medical malpractice applies.”).
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Here, Plaintiff's complaint, even liberally construed, alleges
no facts that plausibly suggest that Defendant acted
negligently apart from its failure to medicate and to admit
Plaintiff for further observation. Therefore, any claim for
ordinary negligence brought by Plaintiff is dismissed.
2. Unlawful Discrimination
Plaintiff alleges in the complaint that the emergency room
physicians treated him “poorly” and discharged him without
mental health treatment because they believed him to be
homeless. Compl. ¶ II.D. In his opposition, Plaintiff expands
by asserting that “this is not only a medical malpractice
case ... it's a racial discrimination case as well” and that he
was “refused treatment” because of his race and perceived
financial status. Pl.'s Opp. ¶ 4. The Court construes these
allegations as raising claims of discrimination under the New
York State Human Rights Law (“NYSHRL”) and the New
York City Human Rights Law (“NYCHRL”).
a. NYSHRL Claim
*12 Defendant moves to dismiss any claim brought under
the NYSHRL because such a claim “must be brought in New
York state court since causes of action under the NYHRL
arise under New York law.” Def.'s Reply in Supp. of Mot.
to Dismiss, ECF No. 32 (“Def.'s Reply”) at 10. Defendant
apparently forgets that any NYSHRL claim is before the
Court under the Court's supplemental jurisdiction, as the
claim arises from the same nucleus of operative facts as
the EMTALA claim and forms part of the same case or
controversy. See 28 U.S.C. § 1367(a) (federal district courts
have supplemental jurisdiction over state law claims “that are
so related to” federal claims “that they form part of the same
case or controversy”).
Supplemental jurisdiction is “discretionary,” City of Chicago
v. Int'l Coll. of Surgeons, 522 U.S. 156, 173 (1997), and courts
in this Circuit generally decline to exercise supplemental
jurisdiction over a claim that is part of the same case or
controversy as a federal claim only when the court “has
dismissed all claims over which it has original jurisdiction,”
28 U.S.C. § 1367(c); see Cohen v. Postal Holdings, LLC,
873 F.3d 394, 399 (2d Cir. 2017) (“[A] district court
‘cannot exercise supplemental jurisdiction unless there is
first a proper basis for original federal jurisdiction.” (quoting
Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182,
1187 (2d Cir. 1996))); Kolari, 455 F.3d at 122 (“[I]n the
usual case in which all federal-law claims are eliminated
before trial, the balance of factors ... will point toward
declining to exercise jurisdiction over the remaining state-law
claims.” (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343, 350 n.7 (1988))). Indeed, courts in this Circuit routinely
exercise supplemental jurisdiction over claims brought under
the NYSHRL where the related federal claims proceed
to be litigated. See, e.g., D'Eredita v. ITT Water Tech.,
Inc., 677 Fed.Appx. 686, 688 (2d Cir. 2017) (upholding
district court's exercise of supplemental jurisdiction over
plaintiff's NYSHRL claims); Kolenovic v. ABM Indus., Inc.,
361 Fed.Appx. 246, 248 (2d Cir. 2010) (affirming district
court's grant of summary judgment on plaintiff's federal and
NYSHRL claims); Vuona v. Merrill Lynch & Co., Inc., 919 F.
Supp. 2d 359, 393 (S.D.N.Y. 2013) (exercising supplemental
jurisdiction over NYSHRL claim when it formed part of
the same case or controversy as a claim brought under the
Americans with Disabilities Act).
Here, Plaintiff's NYSHRL claim is based on the medical
services, or lack thereof, that he received on March 6 and
7, 2017 at Defendant's emergency room. The facts on which
the NYSHRL claim is predicated are, thus, the same facts on
which Plaintiff's federal claim under the EMTALA is based.
Because the Court has not dismissed the EMTALA claim and
the two claims are related so as to form part of the same case
or controversy, the Court exercises supplemental jurisdiction
over the NYSHRL claim.
The NYSHRL makes it unlawful for “any person, being
the owner, lessee, proprietor, manager, superintendent, agent
or employee of any place of public accommodation ...
because of the race ... of any person, directly or indirectly,
to refuse, withhold from or deny to such person any of
the accommodations, advantages, facilities or privileges
thereof....” N.Y. Exec. Law § 296(2)(a); see In re Cahill v.
Rosa, 89 N.Y.2d 14, 23 (1996) (NYSHRL “deems it unlawful
discrimination if a place of public accommodation denies its
accommodations to any person on the basis of ‘race, creed,
color, national origin, sex, or disability or marital status.’ ”).
At the pleading stage, a plaintiff is required to allege facts
sufficient to give rise to an inference of discrimination. See
Schwarz v. Consolidated Edison, Inc., 47 N.Y.S.3d 9, 11 (1st
Dep't 2017); Emengo v. State, 40 N.Y.S.3d 30, 32 (1st Dep't
2016). However, “[t]hreadbare recitals of the elements of a
[NYSHRL] cause of action, supported by mere conclusory
statements are not enough.” Iqbal, 556 U.S. at 678; Akinsanya
v. N.Y. City Health & Hosps. Corp., No. 16-cv-3332 (VEC)
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(KNF), 2017 WL 4049246, at *6 (S.D.N.Y. July 28, 2017),
report and recommendation adopted, No. 16-cv-3332 (VEC)
(KNF), 2017 WL 4023138 (S.D.N.Y. Sept. 12, 2017).
*13 As an initial matter, an individual's perceived financial
status is not a protected class under the NYSHRL. See
N.Y. Exec. Law § 296(2)(a) (listing classes protected
against discrimination). Therefore, Plaintiff's NYSHRL claim
premised on any discrimination by the hospital based on his
perception as a homeless man is dismissed with prejudice.
With respect to Plaintiff's claim of discrimination based on
his race, Plaintiff has not alleged facts that suggest even an
inference of discrimination. He states in conclusory fashion
that Defendant “refused to treat” him because of his race
but does not allege his race or that other patients of other
races were treated any differently than he was. Without more,
Plaintiff's racial discrimination claim under the NYSHRL
cannot survive.
3. Other State Law Claims
To the extent that Plaintiff's complaint may be construed
to allege other claims under New York state law, including
a claim under the New York City Human Rights Law,
Defendant has not moved to dismiss those claims. 8
Accordingly, Plaintiff will have the opportunity to further
litigate those claims.
8 Defendant argues only that the Court should
decline to exercise supplemental jurisdiction over
any state law claims in the event Plaintiff's federal
claims survive dismissal. See Def.'s Reply at 14. As
explained earlier, the Court exercises supplemental
jurisdiction over the state law claims that form
part of the same case or controversy as Plaintiff's
EMTALA claim.
C. Leave to Replead
The Second Circuit has advised that district courts “should
not dismiss [a pro se complaint] without granting leave to
amend at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated.” Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). However,
where a court does not find that the complaint, liberally
construed, “suggests that the plaintiff has a claim that she
has inadequately or inartfully pleaded,” but instead that “[t]he
problem with [the plaintiff's] causes of action is substantive
[and] better pleading will not cure it,” “[r]epleading would [ ]
be futile” and leave to replead “should be denied.” Id. (citing
Hunt v. All. N. Am. Gov't Income Tr., 159 F.3d 723, 728 (2d
Cir. 1998)).
Here, as explained, Plaintiff's Section 1983 claims are
precluded by well-established law. Therefore, repleading
those claims would be futile, and Plaintiff is not granted
leave to amend those claims. Plaintiff's Section 1981 and
NYSHRL claims, on the other hand, do not suffer from
the same substantive deficiencies, and Plaintiff is granted
leave to amend his complaint to address the insufficiencies in
connection with those claims.
IV. CONCLUSION
For the reasons stated above, Defendant's motion to dismiss
is GRANTED IN PART and DENIED IN PART.
Plaintiff's Section 1983 claims are dismissed with prejudice.
Plaintiff's Section 1981 claim is dismissed without prejudice.
Plaintiff's EMTALA claim survives.
Plaintiff's NYSHRL claim is dismissed without prejudice.
Plaintiff's other state law claims survive.
Plaintiff is granted leave to replead his Section 1981 and
NYSHRL claims no later than 30 days following the date of
this order. Plaintiff is advised that an amended complaint will
replace, not supplement, the original complaint.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith, and
therefore in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v. United States, 369 U.S. 438,
444-45 (1962).
*14 The Court requests that counsel for Defendant provide
Plaintiff with copies of unpublished cases cited in this
decision pursuant to Local Rule of the United States District
Courts for the Southern and Eastern Districts of New York
7.2.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 1779344
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Lorenz v. Managing Director, St. Luke's Hosp., Not Reported in F.Supp.2d (2010)
2010 WL 4922267
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2010 WL 4922267
Only the Westlaw citation is currently available.
This decision was reviewed by West editorial
staff and not assigned editorial enhancements.
United States District Court,
S.D. New York.
Eduard LORENZ, Plaintiff,
v.
MANAGING DIRECTOR, ST.
LUKE'S HOSPITAL, Defendant.
No. 09 Civ. 8898(DAB)(JCF).
|
Nov. 5, 2010.
REPORT AND RECOMMENDATION
JAMES C. FRANCIS IV, United States Magistrate Judge.
*1 TO THE HONORABLE DEBORAH A. BATTS,
U.S.D.J.:
Eduard Lorenz, proceeding pro se, brings this action alleging,
among other things, medical malpractice and violations of
federal and state civil rights laws stemming from his treatment
at St. Luke's–Roosevelt Hospital Center (“St.Luke's”) in
2006. The defendant has moved to dismiss the complaint
under Rule 12(b) of the Federal Rules of Civil Procedure:
(1) because this Court lacks subject-matter jurisdiction over
the plaintiff's claims; (2) because the plaintiff has not stated
a claim upon which relief can be granted; (3) because the
plaintiff's claims are precluded under the principles of res
judicata; and (4) because the plaintiff failed to properly
serve the summons and complaint. For the reasons set forth
below, I recommend that the defendant's motion be granted
without prejudice to the plaintiff filing a new complaint that
establishes subject-matter jurisdiction based on diversity of
citizenship.
Background
In mid-August 2006, Mr. Lorenz was treated for cellulitis
and dermatitis at St. Luke's and discharged, although what
treatment he received there had purportedly failed to cure
his ailments. (Amended Complaint dated March 16, 2010
(“Am.Compl.”), ¶ 5). During the next three months, he was
readmitted to St. Luke's on several occasions for treatment
of cellulitis, dermatitis, and “a severe respiratory blockage,”
which he attributed to his preexisting asthma. (Am.Compl.,
¶ 6). On each occasion, the plaintiff alleges that he was
discharged without receiving effective treatment for his
ailments. (Am.Compl., ¶ 6).
On one occasion in October 2006, the plaintiff was
experiencing “intense pain” and was admitted to the hospital
for two and one-half weeks. (Am.Compl., ¶¶ 7, 8). During this
stay, the plaintiff alleges that, although he had communicated
his allergy to the drug penicillin to hospital staff, he was given
a derivative medication called Augmentin, which caused a
severe allergic reaction with extensive and long-lasting health
effects. (Am.Compl., ¶ 7). He further alleges that he was
injected repeatedly throughout his stay with a medication
called Heparin, which caused him “excruciating sharp pain”
that persisted long after his hospital stay was over, and that
he was given pain medication, including Percocet, which
caused negative side effects including nausea, dizziness, and
loss of appetite. (Am.Compl., ¶¶ 8, 10). The plaintiff also
alleges that, during this extended stay, he was not given meals
that conformed to his dietary restrictions, even though his
treating physician had so ordered, and was not given “dietary
supplements and snacks,” also as directed by his physician.
(Am.Compl., ¶¶ 11–12).
The plaintiff alleges that on each occasion he was admitted
to St. Luke's, he was discharged—against his will, without
having received effective treatment, and in spite of the
hospital staff's awareness that he “had no place of domicile”—
in order to make room for patients with the ability to pay for
treatment. (Am. Compl ., ¶¶ 5, 6, 9). He also claims that he
was “harassed, abusively treated and terrorized” by security
officers at St. Luke's, “with displays of ethnic bias” against his
national origin, “merely because he was sitting in the lobby
or need[ed] to use the toilet.” (Am.Compl., ¶ 14).
*2 Although Mr. Lorenz began his attempts to commence
an action against St. Luke's in the New York Supreme Court
for New York County on May 30, 2007, an index number
and summons were not issued by that court until May 6,
2008. (Am. Compl., ¶¶ 15–23; Summons with Notice dated
May 6, 2008, attached as part of Exh. A to Declaration of
Jenny Park dated May 24, 2010 (“Park Decl.”)). On May 15,
2008, the plaintiff signed an affidavit of service, claiming
to have both mailed and personally delivered a Summons
with Notice, Poor Person's Order, and Notice of Settlement
to the Managing Director of St. Luke's Hospital. (Affidavit
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of Service of Initiating Papers dated May 15, 2008, attached
as Exh. B to Park Decl.). However, there was no Managing
Director employed at St. Luke's at that time, and the plaintiff
utilized an incorrect address for the hospital. (Affidavit of
Service of Initiating Papers dated May 15, 2008, attached
as Exh. B to Park Decl.; Affidavit of Phyllis Dembo dated
Sept. 5, 2008, attached as Exh. C to Park Decl., ¶¶ 3–5).
Nonetheless, the Summons with Notice was in fact delivered
to St. Luke's on May 28, 2008. (Affirmation of Nicholas
Bagley in Support of Motion to Dismiss dated Sept. 5, 2008
(“Bagley Decl.”), attached as part of Exh. I to Park Decl., ¶
5). The plaintiff's complaint itself was received by St. Luke's
for the first time as part of a package mailed by the plaintiff
on June 12, 2008, in which he purported to move for default
judgment. (Bagley Decl., ¶ 6). St. Luke's moved to dismiss
the plaintiff's complaint “with prejudice for lack of personal
jurisdiction” on September 11, 2008. (Notice of Motion dated
Sept. 11, 2008, attached as part of Exh. I to Park Decl.).
In a Memorandum Decision dated October 27, 2008, Justice
Stanley Sklar of the New York State Supreme Court, New
York County, granted St. Luke's motion based on the
plaintiff's failure to effect proper service. (Memorandum
Decision dated Oct. 27, 2008 (“Oct. 27 Decision”), attached
as Exh. L to Park Decl., at 1). Justice Sklar noted that the
plaintiff could not have personally served St. Luke's, as he
appeared to claim on his Affidavit of Service, because he was
incarcerated in Virginia during the relevant time period, and
that service by mail is only valid for serving corporations
under New York state law once the plaintiff has attempted
with due diligence to serve the defendant by personal or
substituted service. (Oct. 27 Decision at 2). Thus, the judge
held that “the motion to dismiss the complaint is granted and
the action is dismissed.” (Oct. 27 Decision at 2).
On January 12, 2009, Justice Joan Carey issued an Order,
relying on Justice Sklar's earlier decision, which granted
the defendant's motion and dismissed the matter “with
prejudice.” (Order dated Jan. 12, 2009 (the “Jan. 12 Order”),
attached as Exh. M to Park Decl.). Both the Decision and the
Order were filed on January 20, 2009. (Oct. 27 Decision at 1;
Jan. 12 Order). Judgment was rendered by the County Clerk's
Office dismissing the action with prejudice on June 2, 2009.
(Judgment dated June 2, 2009, attached as part of Exh. O to
Park Decl.).
*3 On April 24, 2009, the United States District Court for the
Eastern District of New York received a complaint from the
plaintiff dated April 17, 2009, initiating the instant proceeding
and attaching a copy of the October 27, 2008 state court
Memorandum Decision. (Bill of Complaint dated April 17,
2009). On May 8, 2009, the case was transferred to this Court
under the venue provisions of 28 U.S.C. § 1391. (Transfer
Order dated May 5, 2009 at 1–2). On October 21, 2009, Chief
Judge Loretta A. Preska issued an order directing the plaintiff
to file an amended complaint establishing his domicile and
demonstrating that he had properly invoked the diversity
jurisdiction of the federal court. (Order dated Oct. 21, 2009
(“Oct. 21 Order”)). That Order also granted the plaintiff's
request to proceed in forma pauperis. (Oct. 21 Order at 1).
After initially filing an amended pleading that spoke only to
the issue of domicile but did not restate his claims, the plaintiff
filed a complete Amended Complaint dated March 16, 2010,
that was received by the Court on March 23, 2010. (Amended
Pleading dated Nov. 13, 2009; Am. Compl.). St. Luke's filed
the instant motion on June 3, 2010. (Notice of Motion dated
June 3, 2010).
Discussion
The defendant moves to dismiss the plaintiff's complaint on
the ground that this Court lacks subject-matter jurisdiction to
hear the plaintiff's claims. In the alternative, the defendant
argues that: (1) the plaintiff has failed to state a claim on which
relief may be granted; (2) the plaintiff's claims are barred by
res judicata; and (3) the plaintiff failed to properly serve the
defendant with process. In evaluating these contentions, the
plaintiff's complaint “is to be read liberally” because he is
proceeding pro se. Shomo v. City of New York, 579 F.3d 176,
183 (2d Cir.2009). Further, courts are especially solicitous
of pro se plaintiffs who assert civil rights claims or who are
incarcerated, and the plaintiff is both. Tracy v. Freshwater, No.
08–1769, slip op. at 22 (2d Cir. Oct. 14, 2010).
A. Subject Matter Jurisdiction
An objection that a court lacks subject-matter jurisdiction
“may be raised by a party, or by a court on its own initiative,
at any stage in the litigation, even after trial and the entry of
judgment.” Arbaugh v. Y & H Corp., 546 U.S. 500, 506, 126
S.Ct. 1235, 163 L.Ed.2d 1097 (2006). “Whenever it appears
by suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the
action.” Id. at 507 (quoting former Fed.R.Civ.P. 12(h)(3)).
“The party invoking federal jurisdiction bears the burden of
establishing that jurisdiction exists.” Conyers v. Rossides, 558
F.3d 137, 143 (2d Cir.2009) (quoting Sharkey v. Quarantine,
541 F.3d 75, 82 (2d Cir.2008)) (internal quotation marks
omitted). This burden must be met by a preponderance of the
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evidence. Makarova v. United States, 201 F.3d 110, 113 (2d
Cir.2000).
*4 In reviewing a motion to dismiss under Rule 12(b)(1) on
the pleadings, where no evidentiary hearings have been held,
the court “must accept as true all material facts alleged in the
complaint and draw all reasonable inferences in the plaintiff's
favor.” Conyers, 558 F.3d at 143 (quoting Sharkey, 541 F.3d
at 83). However, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.” Sharkey, 541 F.3d
at 83 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct.
2932, 92 L.Ed.2d 209 (1986)).
1. Arising Under Jurisdiction
“Congress has broadly authorized the federal courts to
exercise subject-matter jurisdiction over ‘all civil actions
arising under the Constitution, laws, or treaties of the United
States.’ “ Arbaugh, 546 U.S. at 505 (quoting 28 U.S.C.
§ 1331). St. Luke's contends that the plaintiff's claims do
not implicate any federal statute or constitutional right that
would provide this Court with “arising under” jurisdiction,
and cites as support the October 21, 2009 Order requiring the
plaintiff to file an amended complaint establishing diversity
of citizenship because “plaintiff's allegations of medical
malpractice fail to draw into question” any federal statutory
or constitutional right. (Oct. 21 Order at 2). However, this
Order was based on the plaintiff's complaint the plaintiff
filed on April 17, 2009, which was plainly missing numbered
pages three, five, and six. (Bill of Complaint dated April 17,
2009). In the Amended Complaint that the plaintiff filed on
March 16, 2010, page five contains an allegation that the
plaintiff's treatment by hospital security staff was “in violation
of State and Federal statutes and Civil Rights violations
and in violation of constitutional law.” (Am.Compl., ¶ 14).
Affording this complaint the liberal treatment due pro se
complaints, Shomo, 579 F.3d at 183, this is sufficient to
establish that “on its face [ ] the complaint is drawn
so as to seek recovery under federal law.” International
Brotherhood of Teamsters v. Carey, 163 F.Supp.2d 271, 278
(S.D.N.Y.2001). “Little is needed for a plaintiff to assert
a claim sufficient to give the federal court jurisdiction.”
Spencer v. Casavilla, 903 F.2d 171, 173 (2d Cir.1990).
“[E]ven if the court believes that it would dismiss the
complaint in response to a motion under Fed.R.Civ.P. 12(b)
(6), that is not reason to dismiss for lack of jurisdiction.”
Id. Thus, the plaintiff's allegations of violations of federal
and constitutional law are sufficient to establish this Court's
subject-matter jurisdiction under 28 U.S.C. § 1331. The
sufficiency of those allegations are best evaluated pursuant to
the defendant's motion to dismiss for failure to state a claim on
which relief can be granted under Rule 12(b)(6) of the Federal
Rules of Civil Procedure.
2. Supplemental Jurisdiction
However, as will be discussed below, Mr. Lorenz has failed
to state a federal claim upon which relief can be granted. To
the extent that the plaintiff has stated a claim upon which
relief can be granted under New York state law, these claims
are not an appropriate subject for this Court's adjudication
absent a properly stated federal claim based on the same
case or controversy. See Jenkins v. St. Luke's–Roosevelt
Hospital Center, No. 09 Civ. 12, 2009 WL 3682458, at
*11 (S.D.N.Y. Oct. 29, 2009) (“ ‘Certainly, if the federal
claims are dismissed before trial ... the state claims should
be dismissed as well.’ “ (quoting United Mine Workers v.
Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218
(1966))); see also 28 U.S.C. § 1367(a), (c) (“The district
courts may decline to exercise supplemental jurisdiction over
a claim ... if ... the district court has dismissed all claims over
which it has original jurisdiction.”) This Court would thus
only have jurisdiction over any remaining state claims based
on the alternative source of federal jurisdiction, diversity of
citizenship.
3. Diversity Jurisdiction
*5 “Federal courts have original jurisdiction over questions
of state law when the dispute is between citizens of different
states and the amount in controversy exceeds $75,000.”
Jordan v. Verizon Corp., No. 08 Civ. 6414, 2008 WL
5209989, at *3 (S.D.N.Y. Dec.10, 2008) (citing 28 U.S.C.
§ 1332(a)). 1 Additionally, citizens of foreign states are
diverse from all United States residents for the purpose of
diversity jurisdiction. See 28 U.S .C. § 1332(a)(2); Kato v.
County of Westchester, 927 F.Supp. 714, 715 (S.D.N.Y.1996).
This rule applies even where a foreign citizen resides in
the United States and has extensive contacts here, unless
he has been “admitted to the United States for permanent
residence,” in which case he will be “deemed a citizen of
the State” in which he is domiciled. § 1332(a); see also
Tevdorachvili v. Chase Manhattan Bank, 103 F.Supp.2d 632,
637–38 (E.D.N.Y.2000).
1 The plaintiff has met the amount in controversy
requirement of diversity jurisdiction by claiming
$18,942,000.00 in damages against St. Luke's.
(Am.Compl., ¶ 49). This meets the requirement
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because there is a “ ‘rebuttable presumption
that the face of the complaint is a good faith
representation of the actual amount in controversy,’
“ see Jordan, 2008 WL 5209989, at *4 n. 4 (quoting
Wolde–Meskel v. Vocational Instruction Project
Community Services, Inc., 166 F.3d 59, 63 (2d
Cir.1999), and the defendants have not objected to
the plaintiff's figure.
The plaintiff in this case was required to amend his complaint
in order to establish his domicile because “[p]risoners are
presumed to retain the domicile they had at the time
of incarceration for diversity purposes, although they can
attempt to show that they have established domicile in the
state of incarceration.” Scott v. Sonnet, Sale & Kuehne, P.A.,
989 F.Supp. 542, 543 n. 1 (S.D.N.Y.1998). Thus, although the
plaintiff is incarcerated in Virginia, it was not clear from the
face of his complaint where he was domiciled for purposes of
diversity jurisdiction at the time the complaint was filed. (Oct.
21 Order at 2). The plaintiff's Amended Pleading in response
to this order alleged that his “domicile has always been in
his native Germany,” and gave an address in that country.
(Amended Pleading dated Nov. 13, 2009 at 1–2).
The plaintiff still has not made allegations sufficient to
meet his burden for establishing diversity of citizenship.
The only evidence on the record of his domicile is his
conclusory statement that his “domicile has always been
in his native Germany;” there are no actual facts alleged
to support what is essentially a legal conclusion. A typical
analysis of a plaintiff's domicile for the purposes of diversity
jurisdiction looks to factors including: location of bank
accounts and property; membership in organizations such as
unions, churches, and clubs; place of employment; driver's
license and car registration; payment of taxes; and other
aspects of establishing “a true, fixed home and principal
establishment.” 13E Charles Alan Wright et al., Federal
Practice and Procedure § 3612 (3d ed.1998); see also, e.g.
Gonzalez v. Rajkumar, No. 04 Civ. 9405, 2005 WL 1593008,
at *2–3 (S.D.N.Y. July 6, 2005); Greenblatt v. Gluck, 265
F.Supp.2d 346, 351–52 (S.D.N.Y.2003). Since the plaintiff
has not alleged any facts of this sort in order to establish his
domicile—in spite of being given an opportunity to amend
his complaint in order to do so—and has not alleged that
he is in fact a citizen of Germany, he has not shown by a
preponderance of the evidence that jurisdiction exists in the
federal courts based on diversity of citizenship.
*6 Although the absence of subject-matter jurisdiction in
this case requires the dismissal of the plaintiff's claim, this
should be without prejudice to his refiling a complaint that
successfully alleges facts demonstrating the existence of
diversity jurisdiction, since it remains plausible that there is
diversity. See Housand v. Heiman, 594 F.2d 923, 925 (2d
Cir.1979) (“Though he does not make clear in his pleadings
on what facts his diversity claim is based, Pro se papers
should be read liberally, and [the plaintiff] should be given the
chance to allege facts upon which diversity jurisdiction may
be anchored.” (internal citation omitted)).
B. Failure to State a Claim
Because the plaintiff has provisionally established “arising
under” jurisdiction under 28 U.S.C. § 1331, it is necessary to
consider the defendant's remaining arguments. “A complaint
may be dismissed to the extent that it ‘fail[s] to state a claim
upon which relief can be granted.’ “ DiFolco v. MSNBC Cable
L.L.C., F.3d ––––, ––––, No. 09–2821, 2010 WL 3911330,
at *5 (2d Cir. Oct.7, 2010) (quoting Fed.R.Civ.P. 12(b)(6)).
“[T]o survive a motion to dismiss, even a pro se plaintiff must
plead ‘enough facts to state a claim to relief that is plausible
on its face.’ “ Johnson v. City of New York, 669 F.Supp.2d 444,
448 (S.D.N.Y.2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007));
accord Shomo, 579 F.3d at 183. However, a court may grant
a motion to dismiss under 12(b)(6) only if “ ‘it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.’ “
Kwan v. Schlein, 441 F.Supp.2d 491, 498 (S.D.N.Y.2006)
(quoting Drake v. Delta Air Lines, Inc., 147 F.3d 169, 171
(2d Cir.1998)). In order to state a claim for relief, a plaintiff
need not make “detailed factual allegations,” but must do
more than make “an unadorned, the defendant-unlawfully-
harmed-me accusation.” Ashcroft v. Iqbal, ––– U.S., ––––,
129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal
quotation marks omitted); see also Twombly, 550 U.S. at 570
(“Because the plaintiffs here have not nudged their claims
across the line from conceivable to plausible, their complaint
must be dismissed.”).
In evaluating whether a complaint has stated a claim, all
factual allegations made in the complaint are accepted to be
true, and the court “must draw all reasonable inferences in
favor of the non-moving party.” Kwan, 441 F.Supp.2d at 498.
Construing his complaint liberally, Shomo, 579 F.3d at 183,
Mr. Lorenz has alleged violations of a variety of state and
federal laws. See also Albert v. Carovano, 851 F.2d 561, 571 n.
3 (2d Cir.1988) (“The failure in a complaint to cite a statute, or
to cite the correct one, in no way affects the merits of a claim.
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Factual allegations alone are what matters.”). Each of these
allegations will be evaluated in turn to determine whether the
plaintiff has stated a claim upon which relief can be granted.
1. Federal Claims
a. Civil Rights
*7 Mr. Lorenz alleges that his civil rights, grounded in the
Constitution and in federal statutes, were violated by “the
Security Staff” of St. Luke's when they “harassed, abusively
treated and terrorized” him “with displays of ethnic bias of
his nationality/origin.” (Am.Compl., ¶ 14).
In general, the Fourteenth Amendment to the U.S.
Constitution and 42 U.S.C. § 1983 protect individuals
from discrimination based on national origin. However, the
Constitution and § 1983 apply only to state actors, and St.
Luke's is therefore not liable under these laws. See Logan
v. St. Luke's–Roosevelt Hospital Center, 636 F.Supp. 226,
236 (S.D.N.Y.1986) aff'd, 805 F.2d 391 (2d Cir.1986) (“The
Second Circuit has conclusively held that a private, voluntary
non-profit hospital such as St. Luke's, although licensed and
regulated by the state, does not have a sufficiently close nexus
with the state to constitute ‘state action’ for purposes of the
Fourteenth Amendment.”).
42 U.S.C. § 1981 protects individuals from civil rights
violations by private actors, but its scope is more limited. In
order to state a claim for relief under § 1981, a plaintiff must
demonstrate: (1) that he is a member of a racial minority;
(2) that the defendant intended to discriminate on the basis
of race; and (3) that the discrimination was related to one
of several essential activities listed in the statute. Brown v.
City of Oneonta, 221 F.3d 329, 339 (2d Cir.2000); accord
Johnson, 669 F.Supp.2d at 449; Olivera v. Town of Woodbury,
281 F.Supp.2d 674, 684 (S.D.N.Y.2003). Because § 1981
focuses on racial discrimination, it prohibits discrimination
based on “ancestry or ethnic characteristics,” but does not
prohibit discrimination on the basis of national origin per se.
Anderson v. Conboy, 156 F.3d 167, 170 (2d Cir.1998).
Mr. Lorenz appears to be alleging national origin
discrimination, and thus has failed to state a claim under
§ 1981. Even assuming for the sake of argument that his
claim of discrimination is based on his “ancestry or ethnic
characteristics,” Mr. Lorenz has not stated a claim under this
statute because he was not engaged in a protected activity. See
42 U.S.C. § 1981(a) (protecting right “to make and enforce
contracts, to sue, be parties, give evidence, and to the full
and equal benefit of all laws and proceedings for the security
of persons and property”). Finally, Mr. Lorenz has alleged
no facts to illustrate what “displays of ethnic bias” were
made by the Security Staff. See Rivera–Powell v. New York
city Board of Elections, 470 F.3d 458, 470 (2d Cir.2006)
(“[Plaintiff's] complaint proffers only a conclusory allegation
of discrimination, which, without evidentiary support or
allegations of particularized incidents, does not state a valid
claim and so cannot withstand a motion to dismiss.” (internal
citations and quotation marks omitted)). Thus, the plaintiff
has failed to meet his burden with respect to any of the three
prongs of a § 1981 violation and therefore has not stated a
claim upon which relief can be granted. 2
2 The defendant argues that, even if the plaintiff
had sufficiently pled a claim for violation of
§ 1981, such claim would be barred by the
statute of limitations. (Memorandum of Law
in Support of Defendant St. Luke's Roosevelt
Hospital Center's Motion to Dismiss the Amended
Complaint (“Def.Memo.”) at 11–12). Since the
plaintiff has failed to state a claim, this argument
need not be addressed.
b. “Hate Crimes”
*8 Mr. Lorenz also alleges that he was repeatedly discharged
from the hospital before his ailments had been fully treated
in order to make room for paying patients, “in violation of
the “Hate Crimes Act's statutes.” (Am.Compl., ¶ 9). Federal
law does prohibit the commission of “hate crimes,” which
it defines as acts “caus[ing] bodily injury to any person ...
because of the actual or perceived ... national origin ... of any
person.” 18 U.S.C. § 249(a). However, this law is a criminal
statute that cannot be enforced by a private party in a civil
action such as this.
Liberally construed, the factual allegations behind Mr.
Lorenz's “Hate Crimes Act” claim suggest a potential
violation of the Emergency Medical Treatment and Active
Labor Act, 42 U.S.C. § 1395dd. Federal law requires that
if a patient comes to a hospital emergency department and
requests treatment for a medical condition, the hospital must
screen the patient to determine if he has an emergent condition
and examine and treat a patient in such condition “as may be
required to stabilize the medical condition” or provide for the
safe transfer of the patient to another hospital. § 1395dd(a),
(b)(1). This statute is designed to ensure that “ ‘hospitals
[ ] provide medical screening and stabilizing treatment to
individuals seeking emergency care in a nondiscriminatory
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manner,’ “ Byrne v. Cleveland Clinic, 684 F.Supp.2d 641, 651
(E.D.Pa.2010) (quoting Torretti v. Main Line Hospitals, Inc.,
580 F.3d 168, 173 (3d Cir.2009)), and in particular to ensure
that “a hospital apply its standard of screening uniformly to
all emergency room patients, regardless of whether they are
insured or can pay,” id. (quoting Power v. Arlington Hospital
Association, 42 F.3d 851, 856 (4th Cir.1994)). However, it
was “not intended to create a federal malpractice statute or
cover cases of hospital negligence.” Id. (quoting Torretti,
580 F.3d at 178). It does not appear from Mr. Lorenz's
complaint that St. Luke's failed to screen or stabilize his
condition when he initially presented at the hospital—in other
words, he was not refused emergency care because of his
inability to pay. This is all that the federal law requires of
the hospital; Mr. Lorenz's remaining claims regarding the
hospital's treatment of these conditions and its determination
that he was medically ready for discharge are cognizable
only as state medical malpractice claims. See § 1395dd(f)
(“The provisions of this section do not preempt any State or
local law requirement ....”); Baber v. Hospital Corporation
of America, 977 F.2d 872, 880 (4th Cir.1992) (“Questions
regarding whether a physician or other hospital personnel
failed properly to diagnose or treat a patient's condition are
best resolved under existing and developing state negligence
and medical malpractice theories of recovery.”).
2. State Claims
Thus, the plaintiff has failed to state a federal law claim
upon which relief can be granted. Although this is sufficient
to support dismissal of his case on the grounds that this
Court would decline to assert supplemental jurisdiction over
any remaining properly stated state law claims, the plaintiff
still retains the right to re-plead his case in federal court
by asserting diversity of citizenship jurisdiction. However,
leave to amend should not be given where to do so would be
futile “because the amended complaint itself would have to
be dismissed for failure to state a claim.” Jordan, 2008 WL
5209989, at *5. The plaintiff's state claims will therefore be
evaluated in order to determine whether they state a claim
upon which relief can be granted, or should be dismissed
pursuant to St. Luke's motion to dismiss under Rule 12(b)(6)
of the Federal Rules of Civil Procedure.
a. Civil Rights
*9 At the same time that the plaintiff alleged a violation of
his Constitutional and federal statutory civil rights based upon
the alleged harassment and abusive treatment that involved
“ethnic bias of his nationality/origin,” he also alleged that
this treatment was in violation of state civil rights law. New
York Executive Law § 296(2)(a) prohibits the proprietor of
“any place of public accommodation” (including hospitals,
§ 292(9)) from “refus[ing], withhold[ing] from or deny[ing]
to” any person “any of the accommodations, advantages,
facilities or privileges thereof” based upon, among other
things, his national origin. New York Civil Rights Law §
40–c provides that “[n]o person shall, because of ... national
origin ..., be subjected to any discrimination in his or her civil
rights, or to any harassment ... in the exercise thereof, by any
other person or by any firm, corporation or institution ....“
Unlike with the plaintiff's federal claims, it is at least possible
for the plaintiff to state a claim under these statutes. Indeed,
“the provisions of the Human Rights Law must be liberally
construed to accomplish the purposes of the statute,” which
includes ensuring “every person in this state ... an equal
opportunity ... to obtain adequate health care.” Cahill v.
Rosa, 89 N.Y.2d 14, 20, 651 N.Y.S.2d 344, 346, 674 N.E.2d
274 (1996) (internal quotation marks omitted). Nonetheless,
the plaintiff has failed to state a claim under New York
civil rights law because, taking as true the plaintiff's claim
that he was denied access to a public accommodation—the
hospital bathroom and lobby—there are no facts indicating
that this denial was the result of discriminatory animus; he
“asserts no specific action ... which would suggest a link
between plaintiff's protected characteristic and any of the
[ ] claimed wrongs.” Planck v. SUNY Board of Trustees, 18
A.D.3d 988, 991, 795 N.Y.S.2d 147, 150 (3d Dep't 2005);
see also Goldin v. Engineers Country Club, 54 A.D.3d 658,
659, 864 N.Y.S.2d 43, 45 (2d Dep't 2008), lv. to appeal
denied in part, dismissed in part, 13 N.Y.3d 763, 886
N.Y.S.2d 864, 915 N.E.2d 1160 (2009) ( “[T]he plaintiffs'
conclusory assertion that the defendants discriminated against
the plaintiff ... is unsupported by any factual allegations and
insufficient to state a cause of action to recover damages for
discrimination ....”). This conclusion is bolstered by the fact
that federal courts interpreting New York state civil rights
law have looked to federal law as a guide to their analysis of
discrimination claims. See, e.g., Drayton v. Toys ‘R’ Us Inc.,
645 F.Supp.2d 149, 163–64 (S.D.N.Y.2009) (“[A] claim of
discrimination pursuant to New York Executive Law § 296
is subject to the same analysis as a claim of discrimination
under federal law.” (quoting Morris v. Ales Group USA, Inc.,
No. 04 Civ. 8239, 2007 WL 1893729, at *11 (S.D.N.Y. June
29, 2007))). Just as there are insufficient facts alleged to push
the plaintiff's federal claims “across the line from conceivable
to plausible,” Twombly, 550 U.S. at 547, there are insufficient
facts to establish a claim under state law.
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b. “Hate Crimes”
*10 It is not clear whether, in claiming violation of the
“Hate Crimes Act,” the plaintiff intended to plead a federal
or state violation. However, as in the federal context, the only
New York laws that deal with hate crimes—including the
Hate Crimes Act of 2000, N.Y. Penal Law § 485—penalize
various violent crimes more severely when their commission
is motivated by the victim's membership in a protected group.
Thus, no such state claim can be alleged by the plaintiff.
However, the facts alleged by the plaintiff in support of
his “Hate Crimes Act” claim implicate other state statutes
that protect the rights of hospital patients (and, indeed,
the plaintiff alludes directly to these statutes). In particular,
New York law requires that an inpatient not be discharged
“unless a written notice [of determination that discharge
is medically necessary] and a copy of the discharge plan
have been provided to the patient.” N .Y. Public Health
Law § 2803–i; see also N.Y. Comp.Codes R. & Regs. tit.
10, § 405.9. The plaintiff explicitly alleged that he was
“repeatedly discharged” although he was “never given notice
thereof.” (Am.Compl., ¶ 9). However, there is no private right
of action to bring such a claim in court. Cf. N.Y. Public Health
Law § 2801–c (granting courts power to enjoin violations
of public health law and related regulations but making no
provisions for private citizens to seek this relief); § 2801–
d(1) (creating private right of action to enforce “any right
or benefit created or established for the well-being of the
patient ..., by any state statute, code, rule or regulation”
against “residential health care facility” only); § 2803(5)
(granting state Commissioner of Health power to enforce
compliance with public health law and related regulations in
court).
Similarly, although “[n]o general hospital shall transfer any
patient to another hospital or health care facility on the
grounds that the patient is unable to pay or guarantee payment
for services rendered,” N.Y. Public Health Law § 2805–b;
see also N.Y. Comp.Codes R. & Regs. tit. 10, § 405.9 (“[A]
hospital shall ensure that no person presented for medical care
shall be removed, transferred or discharged from a hospital
based upon source of payment.”), and Mr. Lorenz alleges
that he was discharged when the hospital “required the bed
space for a paying patient,” (Am.Compl., ¶ 9), there is again
no private right of action available to enforce this statutory
requirement. Thus, the plaintiff does not have recourse for
these alleged violations.
c. Medical Malpractice
The balance of the plaintiff's claims are fairly characterized
as alleging medical malpractice by the hospital and the health
care professionals who work there. Mr. Lorenz himself states
his claims in several different ways (“medical malpractice/
medical negligence,” “failure ... to fulfill its fiduciary duty,”
violating the “Hypocratic Oath,” discharging him “without
curing his ailment”). (Am.Compl., ¶¶ 3–5). However, because
the claims allege not simple negligence, such as accidental
administration of incorrect medication, nor violation of any
“specific promise to effect a cure,” Scalisi v. New York
University Medical Center, 24 A.D.3d 145, 147, 805 N.Y.S.2d
62, 64 (1st Dep't 2005), but rather substantive errors in the
course of treatment undertaken by St. Luke's, they “involve [ ]
a matter of science or art requiring special knowledge or skill
not ordinarily possessed by the average person” to evaluate,
Detwiler v. Bristol–Myers Squibb Co., 884 F.Supp. 117, 122
(S.D.N.Y.1995) (quoting Twitchell v. MacKay, 78 A.D.2d
125, 127, 434 N.Y.S.2d 516, 518 (4th Dep't 1980)), and are
thus properly classified as medical malpractice claims. See
also Payette v. Rockefeller University, 220 A.D.2d 69, 71,
643 N.Y.S.2d 79, 81 (1st Dep't 1996) (“A claim sounds in
medical malpractice when the gravamen of the complaint
is ‘negligence in furnishing medical treatment to a patient.’
“ (quoting Bleiler v. Bodnar, 65 N.Y.2d 65, 73, 489 N.Y.S.2d
885, 891, 479 N.E.2d 230 (1985))). Medical malpractice is
a state law claim. See, e.g., Colon v. City of New York, No.
08 Civ. 3142, 2009 WL 1424169, at *9 (S.D.N.Y. May 21,
2009) (“A11 of Plaintiff's remaining causes of action allege
violations of state law, i.e., ... medical malpractice ....”).
*11 “The requisite elements of proof in a medical
malpractice action are a deviation or departure from accepted
practice and evidence that such departure was a proximate
cause of injury or damage.” Estiverne v. Esernio–Jenssen,
581 F.Supp.2d 335, 350 (E.D.N.Y.2008) (quoting Wiands v.
Albany Medical Center, 29 A.D.3d 982, 983, 816 N.Y.S.2d
162, 163 (2d Dep't 2006)). “Under New York law, in order to
make out a prima facie case for medical malpractice, plaintiff
must allege that (1) the physician owed a duty of care to the
plaintiff; (2) the physician breached that duty by deviating
from accepted medical practice; and (3) the alleged deviation
proximately caused plaintiff's injuries.” Flemming v. Velardi,
No. 02 Civ. 4113, 2003 WL 21756108, at *3 (S.D.N.Y.
July 30, 2003). Further, under New York law, hospitals are
vicariously liable for the physicians who provide care to
their emergency room patients provided that a patient has
not entered the hospital in order to receive treatment from a
specific physician. See, e.g., Schiavone v. Victory Memorial
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© 2026 Thomson Reuters. No claim to original U.S. Government Works. 8
Hospital, 292 A.D.2d 365, 366, 738 N.Y.S.2d 87, 89 (2d Dep't
2002). Mr. Lorenz has adequately alleged that he was a patient
receiving medical treatment at St. Luke's, that physicians at
St. Luke's made treating decisions that might plausibly be
deviations from accepted medical practice, and that those
decisions caused some injuries to him. Thus, the plaintiff
has properly stated a claim under New York law for medical
malpractice.
C. Res Judicata
In the alternative, St. Luke's argues that all of the plaintiff's
claims are barred by the principle of res judicata because
a substantially identical complaint was dismissed with
prejudice by the New York state court. (Def. Memo. at 14–
17); see also Sassower v. Abrams, 833 F.Supp. 253, 264
(S.D.N.Y.1993) (“[I]t is well settled that a court may dismiss a
claim on res judicata ... grounds on a Rule 12(b)(6) motion.”).
This argument will be evaluated for the same reason that
the defendant's motion to dismiss the plaintiff's state claims
for failure to state a claim was evaluated, notwithstanding
the absence of jurisdiction in the instant proceeding. 3 The
doctrine of res judicata provides that “a final judgment on
the merits of an action precludes the parties or their privies
from relitigating issues that were or could have been raised
in that action.” Flaherty v. Lang, 199 F.3d 607, 612 (2d
Cir.1999) (quoting Rivet v. Regions Bank of Louisiana, 522
U.S. 470, 476, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998))
(internal quotation marks and emphasis omitted). Because
res judicata is “linked to the full faith and credit policy,” a
judicial proceeding in any state court must have the “same
preclusive effect in federal court as it would within that state's
court.” Milltex Industries Corp. v. Jacquard Lace Co., 922
F.2d 164, 166 (2d Cir.1991) (citing Nigra v. Warren City
School District Board of Education, 465 U.S. 75, 81, 104
S.Ct. 892, 79 L.Ed.2d 56 (1984)). In order for the doctrine
to apply, three requirements must be met: “(1) the previous
action involved an adjudication on the merits; (2) the previous
action involved the plaintiffs or those in privity with them;
[and] (3) the claims asserted in the subsequent action were,
or could have been, raised in the prior action.” Monahan v.
New York City Department of Corrections, 214 F.3d 275, 285
(2d Cir.2000). Here, there is no question that the parties and
issues involved are identical—the complaint filed in federal
court was in most respects exactly the same as the one filed
in state court. Thus, the relevant question is whether the New
York Supreme Court's dismissal of the plaintiff's complaint
on the basis of improper service of process constituted an
“adjudication on the merits.”
3 In contrast, the defendant's argument with respect
to the plaintiff's failure to properly serve process
would be irrelevant to any renewed action by the
plaintiff, and therefore will not be addressed here.
*12 Generally, failure to properly serve process does not
bar subsequent litigation of identical claims. See Martin v.
New York State Department of Mental Hygiene, 588 F.2d 371,
373 n. 3 (2d Cir.1978) (“A dismissal for failure of service
of process, of course, has no Res judicata effect.”); see also
Arnold Graphics Industries, Inc. v. Independent Agent Center,
Inc., 775 F.2d 38, 41 (2d Cir.1985) (noting that dismissal
for lack of personal jurisdiction does not have res judicata
effect); Seavey v. Chrysler Corp., 930 F.Supp. 103, 106–
07 (S.D.N.Y.1996) (“In contrast, a dismissal for improper
service or for any other jurisdictional defect does not result
in a judgment on the merits.”); Kokoletsos v. Semon, 176
A.D.2d 786, 787, 575 N.Y.S.2d 116, 116 (2d Dep't 1991)
(same, collecting cases). However, when a case is dismissed
“with prejudice,” the court generally intends that designation
to indicate that a final determination on the merits has been
rendered, and indeed “is treated as a dismissal on the merits,
even if the court did not actually address the merits of the
case.” Jefftex International Ltd. v. JPI Trading Corp., No. 07
Civ. 10460, 2009 WL 750198, at *1 (S.D.N.Y. March 20,
2009), aff'd 369 Fed. Appx. 303, 305 (2d Cir.2010) (citing
Yonkers Contracting Co. v. Port Authority Trans–Hudson
Corp., 93 N.Y.2d 375, 380, 690 N.Y.S.2d 512, 516, 712
N.E.2d 678 (1999)).
However, this case is not a straightforward example of the
general rule that “with prejudice” determinations are final
and on the merits. First, the original, considered state court
decision issued on October 27, 2008 was not, contrary to the
defendant's contentions, made “with prejudice;” only the final
order incorporating that decision indicated that the case was
“dismissed with prejudice.” (Oct. 27 Decision; Jan. 12 Order).
Second, the basis for the dismissal in this case is
distinguishable from other instances in which courts applying
New York res judicata principles determined that a court's
“with prejudice” classification was a binding determination
on the merits. See, e.g., Yonkers Contracting Co., 93 N.Y.2d
at 380–81, 690 N.Y.S.2d at 516, 712 N.E.2d 678 (holding
that dismissal with prejudice was “consistent with ... rationale
for dismissing the case” because it held the plaintiff to a
tactical litigating strategy that it had knowingly elected);
Jefftex, 2009 WL 750198, at *2 (dismissal with prejudice
was appropriate because New York statute calls for dismissal
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Lorenz v. Managing Director, St. Luke's Hosp., Not Reported in F.Supp.2d (2010)
2010 WL 4922267
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when plaintiff is unready to proceed to trial on scheduled
calendar date). In all of these cases, the court had a specific
statutory or substantive reason for dismissing the complaint
with prejudice, even though the merits of the case had not
technically been determined. In contrast, in this case there
is nothing to distinguish the plaintiff's complaint from the
typical complaint dismissed for want of personal jurisdiction
or failure to properly serve process. Indeed, given that the
plaintiff is proceeding pro se, dismissing his complaint with
prejudice based on the improper service of process runs
directly contrary to the general policy of treating pro se
complaints liberally. See Shomo, 579 F.3d at 183; Planck, 18
A.D.3d at 990, 795 N.Y.S.2d at 149 (noting that “liberal and
broad interpretation” of pro se complaints is appropriate).
*13 Furthermore, it is not clear whether the lower state
court had discretion to dictate whether the dismissal of the
complaint would operate as a res judicata bar of the plaintiff's
claims. According to the Restatement (Second) of Judgments
§ 20 cmt. d,
While there are instances in which a
court may have discretion to determine
that a judgment of dismissal shall
operate as a bar ..., a judgment may
not have an effect contrary to that
prescribed by the statutes, rules of
court, or other rules of law operative in
the jurisdiction in which the judgment
is rendered. Thus in a jurisdiction
having a rule patterned on Rule
41(b) of the Federal Rules of Civil
Procedure, a dismissal for lack of
jurisdiction, ... may not be a bar
regardless of the specification made.
And even in the absence of such
a rule, a dismissal on [this ground]
is so plainly based on a threshold
determination that a specification that
the dismissal will be a bar should
ordinarily be of no effect.
Thus, although the New York Court of Appeals has
indicated that “[w]e have used the words ‘with prejudice’
interchangeably with the phrase ‘on the merits' to indicate the
same preclusive effect,” Yonkers Contracting Co., 93 N.Y.2d
at 380, 690 N.Y.S.2d at 516, 712 N.E.2d 678, they have only
done so in the context of judgments where that effect was
“consistent with the ... rationale for dismissing the case,”
id. Where, as here, there is no stated reason for granting
the opinion “with prejudice,” and there has plainly been no
consideration of the merits of the underlying claim, applying
a res judicata bar would be inappropriate.
Conclusion
For the reasons set forth above, I recommend that St.
Luke's' motion to dismiss be granted without prejudice to the
plaintiff's filing a new complaint that establishes this Court's
diversity jurisdiction and asserts his medical malpractice
claims under New York state common law. Pursuant to 28
U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal
Rules of Civil Procedure, the parties shall have fourteen (14)
days from this date to file written objections to this Report
and Recommendation. Such objections shall be filed with
the Clerk of the Court, with extra copies delivered to the
chambers of the Honorable Deborah A. Batts, Room 2510,
and to the chambers of the undersigned, Room 1960, 500
Pearl Street, New York, New York 10007. Failure to file
timely objections will preclude appellate review.
All Citations
Not Reported in F.Supp.2d, 2010 WL 4922267
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Lorenz v. Managing Director, St. Luke's Hosp., Not Reported in F.Supp.2d (2010)
2010 WL 4922541
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2010 WL 4922541
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Eduard LORENZ, Plaintiff,
v.
MANAGING DIRECTOR, ST.
LUKE'S HOSPITAL, Defendant.
No. 09 Civ. 8898(DAB).
|
Dec. 2, 2010.
ADOPTION OF REPORT AND RECOMMENDATION
DEBORAH A. BATTS, District Judge.
*1 This matter is before the Court upon the November
5, 2010 Report and Recommendation of United States
Magistrate Judge James C. Francis IV (the “Report”).
Judge Francis's Report recommends that Defendant's Motion
to Dismiss the Amended Complaint (Docket # 12) be
GRANTED without prejudice to the plaintiff filing a new
complaint that establishes subject matter jurisdiction based on
diversity of citizenship. (Report at 1.)
“Within fourteen days after being served with a copy
[of a Magistrate Judge's Report and Recommendation], a
party may serve and file specific written objections to the
proposed findings and recommendations.” Fed.R.Civ.P. 72(b)
(2); accord 28 U.S.C. § 636(b)(1)(C). The district court may
adopt those portions of the report to which no timely objection
has been made, so long as there is no clear error on the face of
the record. Wilds v. United Parcel Serv., Inc., 262 F.Supp.2d
163, 169 (S.D.N.Y.2003). “[F]ailure to object timely to a
magistrate's report operates as a waiver of any further judicial
review of the magistrate's decision,” Caidor v. Onondaga
County, 517 F.3d 601, 604 (2d Cir.2008) (quoting Small v.
Sec. of HHS, 892 F.2d 15, 16 (2d Cir.1989)). This rule applies
to pro se parties so long as the magistrate's report “explicitly
states that failure to object to the report within [fourteen (14) ]
days will preclude appellate review ...” Small, 892 F.2d at 16.
Despite being advised of the procedure for filing objections
in Judge Francis's Report, and warned that failure to file
objections would waive objections and preclude appellate
review, Report at 28, Plaintiff has filed no objections to the
Report.
Having reviewed the Report, and finding no clear error on
the face of the record, see 28 U.S.C. § 636(b)(1)(B), it is
hereby ORDERED AND ADJUDGED that the Report and
Recommendation of United States Magistrate Judge James C.
Francis IV, dated November 5, 2010, be and the same hereby
is APPROVED, ADOPTED, and RATIFIED by the Court in
its entirety. The Clerk of Court is directed to close the docket
in this matter.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2010 WL 4922541
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Neeseman v. Mt. Sinai West, Not Reported in Fed. Supp. (2018)
2018 WL 626358
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2018 WL 626358
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Cynthia E. NEESEMAN, Plaintiff,
v.
MT. SINAI WEST, et al., Defendant.
17 Civ. 1766 (LGS)
|
Signed 01/30/2018
Attorneys and Law Firms
Cynthia E. Neesemann, New York, NY, pro se.
Dov G. Sternberg, Wilson, Elser, Moskowitz, Edelman &
Dicker LLP, Gregory John Radomisli, Martin Clearwater
& Bell LLP, Robert W. Margulies, Drabkin & Margulies,
Esqs., New York, NY, Ian Marc Herman, Second Judicial
Department Appellate Term, Supreme Court of, Brooklyn,
NY, John B. Mullahy, Kaufman Borgeest & Ryan, LLP,
Parsippany, NJ, Charles Thomas Gura, Marshall, Dennehey,
Warner, Coleman and Goggin, Rye Brook, NY, Edward F.
Humphries, Vaslas Lepowsky Hauss & Danke LLP, Staten
Island, NY, Robert Gerard Vizza, Bartlett, McDonough,
Bastone & Monaghan, Mineola, NY, for Defendant.
OPINION AND ORDER
Lorna G. Schofield, United States District Judge
*1 Plaintiff Cynthia E. Neeseman, acting pro se, sues
four full-service hospitals, four long-term care facilities, and
several John Doe defendants under the Emergency Medical
Treatment and Active Labor Act (“EMTALA”), 42 U.S.C.
§ 1395dd, and various state common law causes of action,
including medical malpractice, for injuries related to the
care her deceased husband received from the defendant
institutions. The eight defendant institutions either move to
dismiss the complaint or seek judgment on the pleadings.
For the reasons stated below, as to the federal claims, the
full-service hospital Defendants' motions are granted, and the
long-term care Defendants' motions are converted to motions
for summary judgment and granted. The Court declines to
exercise supplemental jurisdiction over the state law claims.
I. BACKGROUND
The facts summarized below are drawn from the
Complaint and its attached chronology, which the Complaint
incorporates by reference. The allegations in the Complaint
are assumed to be true and are construed in the light most
favorable to Plaintiff as the non-moving party solely for
purposes of this decision. See Spak v. Phillips, 857 F.3d 458,
463 n.2 (2d Cir. 2017).
On December 5, 2014, Plaintiff’s husband Samuel Friedar
was taken to Roosevelt Hospital (now Defendant Mount Sinai
West) by ambulance. There, Friedar was given medication
for seizures and soon after developed pneumonia. Friedar
was then moved to the ICU, where he was placed on
a respiratory ventilator with a gastric feeding tube. Over
Plaintiff’s persistent objections, Friedar was intubated with
the wrong type of feeding tube, which caused him to aspirate
food from his stomach to his mouth. When he was finally
given the correct type of tube, it was used incorrectly, which
caused Friedar to aspirate stomach contents and become
unresponsive.
The Chief Medical Officers of Roosevelt and Defendant
Mount Sinai Hospital conferred as to Friedar’s treatment.
Although Plaintiff insisted that Friedar should have been
transferred to Mount Sinai Hospital, the two decided to
transfer him to Defendant Select Specialty-Northeast New
Jersey Hospital (“Select Specialty”), a long-term acute care
(“LTAC”) hospital.
Friedar was transferred to Select Specialty on March 20,
2015. There, Friedar’s feed was diluted, and he thus only
received 55% of the appropriate nutrition for 18 days. In
spite of this, Friedar was recovering. In April 2015, he was
taken off the ventilator. Around that time, a malfunction in
his gastric suctioning machine halted his recovery and caused
him to develop pneumonia again, and he was put back on the
ventilator.
On April 30, 2015, Friedar was transferred to Cliffside, a
sub-acute facility in Flushing. Cliffside lacked the appropriate
equipment or expertise necessary for Friedar’s care. Thus,
Plaintiff called an ambulance to take Friedar to Defendant
Mount Sinai Hospital. There, Friedar was put into isolation.
His feeding tube became clogged and had to be replaced.
Instead of ordering a new tube, the doctors cut and patched
the damaged tube.
*2 On June 2, 2015, Friedar was transferred to The Pavilion
at Queens for Rehabilitation and Nursing (“Pavilion”), a
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Defendant, with the patched feeding tube still in place. The
Pavilion staff had promised to provide Plaintiff equipment
that could provide intermittent suctioning to remove stomach
contents that could be regurgitated and aspirated. Pavilion did
not order the correct equipment, and Friedar again aspirated
his gastric contents and developed pneumonia.
On June 6, 2015, Friedar was transferred to New York
Presbyterian Queens Hospital, where the patched feeding
tube was replaced. At various times, the staff mistakenly put
food into the port to be used for suctioning instead of the
feed port. On June 17, 2015, Friedar was transferred back
to Pavilion. Plaintiff offered to provide the staff with a new
portable device that could provide intermittent suctioning,
but the Pavilion owner refused the offer. Friedar became
unresponsive and developed sepsis.
On July 14, 2015, Friedar was sent back to New York
Presbyterian Queens Hospital to be treated for sepsis. There,
he still did not receive intermittent suctioning even though
Friedar’s GI doctor there, who was also the consulting GI
physician at Pavilion, had prescribed it. After the sepsis was
cured, the case manager at New York Hospital Queens tried
to transfer Friedar to a sub-acute facility.
On August 6, 2015, Plaintiff transferred Friedar to Defendant
Kindred Hospital New Jersey-Wayne (“Kindred”), an LTAC
facility where he received intermittent suctioning. Visitors to
Friedar’s roommate contaminated the room, causing Friedar
to develop a Serratia marcescens infection. Friedar became
unresponsive for about ten days. He also developed ulcers on
his feet, legs and hips due to lack of movement.
On October 5, 2015, Friedar was transferred to
Defendant Woodmere Rehabilitation and Health Care Center
(“Woodmere”), a sub-acute facility. Woodmere lacked the
equipment to perform intermittent suctioning and refused
to provide a sterile environment and isolation as promised.
Friedar’s feed was increased, causing him to regurgitate
gastric contents and he again developed pneumonia.
On October 7, 2015, Woodmere transferred Friedar to
Defendant South Nassau Communities Hospital (“South
Nassau”) on Long Island, where he again received inadequate
care. South Nassau declared Friedar stable and refused to keep
him any longer. Plaintiff transferred him back to the Pavilion
on October 21, 2015, while preparing home care facilities.
The Pavilion continued to refuse to provide intermittent
suctioning and again caused him to develop pneumonia.
Friedar was transferred back to South Nassau on November
14, 2015, where he again received substandard treatment.
The staff destroyed another feeding tube, admitting to not
knowing how to use it, and discontinued its use instead of
consulting on the tube’s proper use. South Nassau worsened
Friedar’s leg sores by using pneumatic compression to
squeeze them. Plaintiff was not informed that tissue in
Friedar’s extremities had become necrotic until the doctor told
her that his right foot needed to be amputated.
On November 20, 2015, Plaintiff ordered a medical Learjet
ambulance to transfer Friedar to the Mayo Clinic in
Jacksonville, Florida. Without notifying Plaintiff or Friedar’s
doctor at the Mayo Clinic, South Nassau employees declared
Friedar too unstable to be transferred and turned the Learjet
ambulance crew away. South Nassau staff contacted the Mayo
Clinic to inform them that the transfer was cancelled. Friedar
died on November 22, 2015.
II. STANDARD
A. Motions to Dismiss
*3 On a motion to dismiss, a court accepts as true all
well-pleaded factual allegations and draws all reasonable
inferences in favor of the non-moving party, Trs. of Upstate
N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d at
566 (2d Cir. 2016), but gives “no effect to legal conclusions
couched as factual allegations,” Stadnick v. Vivint Solar, Inc.,
861 F.3d 31, 35 (2d Cir. 2017). To withstand a motion to
dismiss, a pleading “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. Courts, however, read pro se pleadings with
“special solicitude” and interpret them “to raise the strongest
arguments that they suggest.” Fowlkes v. Ironworkers Local
40, 790 F.3d 378, 387 (2d Cir. 2015); see also Boykin v.
KeyCorp, 521 F.3d 202, 216 (2d Cir. 2008) (“[D]ismissal of
a pro se claim as insufficiently pleaded is appropriate only in
the most unsustainable of cases.”).
B. Leave to Amend
Leave to amend “should be ‘freely give[n] ... when justice
so requires,’ Fed. R. Civ. P. 15(a)(2), but should generally
be denied in instances of futility, undue delay, bad faith
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or dilatory motive, repeated failure to cure deficiencies by
amendments previously allowed, or undue prejudice to the
non-moving party.” United States ex rel. Ladas v. Exelis, Inc.,
824 F.3d 16, 28 (2d Cir. 2016) (some internal quotation marks
omitted). “A proposed amendment ... is futile when it could
not withstand a motion to dismiss.” F5 Capital v. Pappas, 856
F.3d 61, 89 (2d Cir. 2017).
C. Motions to for Judgment on the Pleadings
The Court reviews a motion for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c) under the
same standard as a Rule 12(b)(6) motion to dismiss. Bank
of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir.
2010). On a Rule 12(c) motion, the Court may consider
“the complaint, the answer, any written documents attached
to them ... any matter of which the court can take judicial
notice for the factual background of the case[,] ... any written
instrument attached ... as an exhibit, materials incorporated ...
by reference, and documents that, although not incorporated
by reference, are integral” to the pleadings. L-7 Designs, Inc.
v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (internal
quotation marks omitted).
D. Conversion to Summary Judgment
Where a motion to dismiss presents matters outside of the
pleadings, the court may consider them but only by converting
the motion into one for summary judgment under Federal
Rule of Civil Procedure 56. Fed. R. Civ. P. 12(d). To do
so, “[a]ll parties must be given a reasonable opportunity to
present all the material that is pertinent to the motion.” Id.; see
also Parada v. Banco Indus. De Venezuela, C.A., 753 F.3d 62,
67–68 (2d Cir. 2014) (affirming a district court’s conversion
of a motion to dismiss into a motion for summary judgment
where the opposing party was given sufficient notice and
an opportunity to respond). Although formal notice is not
required ordinarily where a party “should reasonably have
recognized the possibility” of such conversion, for a pro
se litigant, “[n]otice is particularly important because the
pro se litigant may be unaware of the consequences of his
failure to offer evidence bearing on triable issues.” Hernandez
v. Coffey, 582 F.3d 303, 307 (2d Cir. 2009) (alteration in
original) (citation and internal quotation marks omitted).
“Accordingly, pro se parties must have ‘unequivocal’ notice
of the meaning and consequences of conversion to summary
judgment.” Id. at 307–08 (citation omitted). “[A]bsent a clear
indication that the pro se litigant understands the nature and
consequences of Rule 56 ... he or she must be so informed
by the movant in the notice of motion or, failing that, by
the district court.” Id. at 308 (citation omitted). That notice
should include a short and plain statement that all assertions
of material fact in the movant’s affidavits will be taken as
true by the district court unless the pro se litigant contradicts
those factual assertions in one or more affidavits made on
personal knowledge containing facts that would be admissible
in evidence or by submitting other materials as provided in
Rule 56(e). McPherson v. Coombe, 174 F.3d 276, 282 (2d Cir.
1999).
*4 Summary judgment is appropriate where the record
before the court establishes that there is “no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The moving party
bears the initial burden of informing the court of the basis for
the summary judgment motion and identifying those portions
of the record that demonstrate the absence of a genuine
dispute as to any material fact. Fed. R. Civ. P. 56(c); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court
must construe the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in the
nonmoving party's favor. In re “Agent Orange” Prod. Liab.
Litig., 517 F.3d 76, 87 (2d Cir. 2008); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
III. DISCUSSION
The Complaint asserts a single federal claim against
all defendants, for violation of the EMTALA, alleging
inadequate treatment and improperly permitting him to
be discharged and transferred from their care. Defendants
Mount Sinai West and New York Hospital Queens move
for judgment on the pleadings under Fed. R. Civ. P. 12(c)
on the ground that they fulfilled their obligations under
EMTALA when they admitted Friedar for inpatient treatment
and provided him the requisite care. Defendants Mount
Sinai Hospital (together with Mount Sinai West, “Mount
Sinai”) and South Nassau move to dismiss the Complaint
under Rule 12(b)(6) for the same reason. Defendants Select
Specialty, Pavilion, Woodmere and Kindred move to dismiss
the Complaint under Rule 12(b)(6) because, as institutions
without emergency departments, they are not subject to
EMTALA.
A. Claims Against Mt. Sinai, New York Hospital
Queens and South Nassau
The complaint fails to state an EMTALA claim against
Mount Sinai, New York Hospital Queens and South Nassau
(collectively, the “Hospital Defendants”) because it does not
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allege that Friedar was denied emergency care. The complaint
alleges that Friedar was admitted for inpatient care upon
arriving at each of these hospitals, thus clearing them of
liability under EMTALA.
“The purpose of EMTALA is to prevent ‘patient dumping,’
the practice of refusing to provide emergency medical
treatment to patients unable to pay, or transferring them
before emergency conditions [are] stabilized.” Hardy v.
N.Y.C. Health & Hosp. Corp., 164 F.3d 789, 792 (2d
Cir. 1999) (alteration in original) (internal quotation marks
and citation omitted). EMTALA applies to hospitals that
participate in the federal Medicare program and imposes two
main obligations on hospitals within its purview. “First, when
an individual shows up for treatment at a hospital’s emergency
room, ‘the hospital must provide for an appropriate medical
screening examination ... to determine whether or not an
emergency medical condition’ exists.” Id. (quoting 42 U.S.C.
§ 1395dd(a)). “Second, if the screening examination indicates
that an emergency medical condition does exist, the hospital
ordinarily must ‘stabilize the medical condition’ before
transferring or discharging the patient.” Id. (quoting 42
U.S.C. § 1395dd(b)(1)(A)). “EMTALA is not a substitute
for state law on medical malpractice. It was not intended to
guarantee proper diagnosis or to provide a federal remedy
for misdiagnosis or medical negligence.” Id. (citations and
internal quotation marks omitted).
Although the Second Circuit has not addressed the issue,
the Fourth and Ninth Circuits, as well as district courts
throughout the country, have held that a hospital’s obligations
under EMTALA end when the hospital admits a patient
for inpatient care. See Bryant v. Adventist Health Sys./West,
289 F.3d 1162, 1167 (9th Cir. 2002); Bryan v. Rectors &
Visitors of Univ. of Va., 95 F.3d 349, 352 (4th Cir. 1996);
Cooper v. City of New York, No. 14 Civ. 3698, 2016 WL
4491719, at *3 (E.D.N.Y. Aug. 25, 2016); Lopez v. Contra
Costa Reg'l Med Ctr., 903 F. Supp. 2d 835, 840 (N.D. Cal.
2012); James v. Jefferson Reg'l, No. 4:12 Civ. 267, 2012
WL 1684570, at *3 (E.D. Mo. May 15, 2012); Money v.
Banner Health, No. 3:11 Civ. 800, 2012 WL 1190858, at
*9 (D. Nev. Apr. 9, 2012); Hussain v. Kaiser Found. Health
Plan, 914 F. Supp. 1331, 1335 (E.D. Va. 1996). The Centers
for Medicare & Medicaid Services (“CMS”), the federal
agency responsible for interpreting and enforcing EMTALA,
promulgated a rule in 2003 adopting this same view. See
42 C.F.R. § 489.24(d)(2) (“If a hospital has screened an
individual ... and found the individual to have an emergency
medical condition, and admits that individual as an inpatient
in good faith in order to stabilize the emergency medical
condition, the hospital has satisfied its special responsibilities
under this section with respect to that individual.”). New York
state courts have agreed. See Lear v. Genesee Mem'l Hosp.,
678 N.Y.S.2d 228, 229-30 (4th Dep't 1998), leave to appeal
denied, 708 N.E.2d 179 (1999) (dismissing EMTALA claim
because the hospital admitted plaintiff, finding that EMTALA
applies only to emergency care); Whitney-Carrington v. N.Y.
Methodist Hosp., No. 26096/98, 2001 WL 856133, at *1 (N.Y.
Sup. Ct. Jan. 8, 2001), aff'd, 734 N.Y.S.2d 490 (2d Dep't
2001) (denying motion to amend to add EMTALA claim
where patient was admitted and operated on due to pregnancy
complications). But see Moses v Providence Hosp. and Med.
Ctrs., Inc., 561 F.3d 573, 582 (6th Cir. 2009) (citing Thornton
v. Sw. Detroit Hosp., 895 F.2d 1131, 1134 (6th Cir. 1990)).
The Court is persuaded by these authorities.
*5 While the Complaint alleges that Friedar received
substandard care from each of the Hospital Defendants,
drawing every reasonable inference in Plaintiff’s favor,
the Complaint acknowledges that Friedar was admitted to
and received treatment at each hospital. As alleged in the
Complaint, Friedar was treated at Roosevelt for over three
months and at Mount Sinai Hospital for over a month. He
had two stays at New York Hospital Queens, lasting eleven
days and twenty-three days, and two stays at South Nassau,
lasting fourteen days and eight days, before unfortunately
passing away. The Complaint thus fails to state a claim under
EMTALA. The Hospital Defendants' Rule 12(b)(6) and 12(c)
motions are granted as to the EMTALA claims.
Leave to amend the EMTALA claim against the Hospital
Defendants is denied. As explained, the Complaint provides
a detailed narrative indicating that Plaintiff was admitted
and treated at each of these hospitals and was not turned
away, thus clearing them of liability under EMTALA. Any
amendment of the Complaint would thus be futile.
B. Claims Against Select Specialty, Pavilion, Kindred
and Woodmere
Sufficient cause exists to convert the motions to dismiss
of Select Specialty, Pavilion, Kindred and Woodmere
(collectively, the “Long-Term Care Defendants”) to motions
for summary judgment. First, the Long-Term Care
Defendants' notices pursuant to Local Civil Rule 12.1 filed
contemporaneously with their moving papers constitutes
sufficient notice for Rule 12(d) purposes. See, e.g., Redman
v. N.Y. State Dep't of Corr. Servs., 541 Fed.Appx. 52, 53
(2d Cir. 2013) (summary order) (finding Local Civil Rule
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12.1 statement provided sufficient notice to pro se party
that a motion to dismiss may be converted to a motion for
summary judgment). Second, Plaintiff likewise submitted
evidence outside the pleadings in response to Long-Term
Care Defendants' motions. Because Plaintiff had unequivocal
notice that these Defendants' motions might be converted to
motions for summary judgment, Long-Term Care Defendants'
motions are treated as motions for summary judgment.
The Long-Term Care Defendants are not subject to
EMTALA because they are not “participating hospitals” with
“emergency departments.” See 42 U.S.C. § 1395dd(a), (e)
(2). “It is clear that EMTALA does not apply to all health
care facilities; it applies only to participating hospitals with
emergency departments.” Rodriguez v. Am. Int'l Ins. Co. of
P.R., 402 F.3d 45, 48 (1st Cir. 2005); accord Hardy, 164 F.3d
at 792 (explaining that EMTALA’s stabilization requirement
applies once a hospital’s emergency room has determined
that an emergency medical condition exists); Cooper,
2016 WL 4491719 at *2 (EMTALA’s requirements apply
to “Medicare-participating hospital[s] with ... emergency
room[s]”) (quoting 42 U.S.C. § 1395dd(a)).
Each of the Long-Term Care Defendants has presented
competent evidence that it is not a “participating hospital”
with an “emergency department” under the meaning of
EMTALA, and thus is not subject to the Act. Each has
submitted sworn statements and state registration documents
indicating that they do not provide emergency care, and are
not licensed to do so. Select Specialty and Kindred have
provided evidence that they are LTAC hospitals that do not
have emergency rooms, and Pavilion and Woodmere have
provided evidence that they are not hospitals at all.
Plaintiff fails to provide contrary evidence. Instead, her
affidavits and their attachments mostly detail the inadequate
care her late husband allegedly received at these institutions
and provide unavailing legal argument as to why they should
be subject to EMTALA. Although she paints an extremely
sympathetic picture, there is no evidence in the record to
suggest that the Long-Term Care Defendants are subject to
EMTALA, and no reasonable trier of fact could conclude
that they are. Summary judgment is thus granted as to the
EMTALA claims against the Long-Term Care Defendants.
C. State Law Claims
*6 In addition to her EMTALA claim, Plaintiff brings New
York state law claims of medical malpractice and loss of
consortium against all Defendants, and false imprisonment
against South Nassau. “The district courts may decline to
exercise supplemental jurisdiction over a claim ... if ...
the district court has dismissed all claims over which it
has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Given
this threshold dismissal, the Court declines to exercise
supplemental jurisdiction over Plaintiff’s state law claims.
IV. CONCLUSION
For the foregoing reasons, Mount Sinai West’s and New York
Hospital Queens’s motions for judgment on the pleadings,
and Mount Sinai Hospital’s and South Nassau’s motions to
dismiss, are GRANTED as to EMTALA claims. As to these
motions to dismiss, leave to amend is DENIED. The Long-
Term Care Defendants' motions to dismiss are converted
to motions for summary judgment, which are GRANTED
as to EMTALA claims. The Court declines to exercise
supplemental jurisdiction over Plaintiff’s state law claims,
which are dismissed with leave to renew in a state court of
appropriate jurisdiction, provided that they were timely filed
when brought in this case.
The Clerk of Court is directed to close the case and all pending
motions.
All Citations
Not Reported in Fed. Supp., 2018 WL 626358
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Bonsell v. Muldowney, Slip Copy (2025)
2025 WL 2042228
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2025 WL 2042228
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Alina BONSELL, Plaintiff,
v.
Kathleen MULDOWNEY, Defendant.
25-CV-1170 (LLS)
|
Signed July 14, 2025
|
Filed July 17, 2025
Attorneys and Law Firms
Alina Bonsell, New York, NY, Pro Se.
ORDER OF DISMISSAL
LOUIS L. STANTON, United States District Judge:
*1 Plaintiff proceeds pro se and in forma pauperis. On
March 10, 2025, Plaintiff filed an amended complaint (ECF
8), in which she invokes the False Claims Act (FCA), 31
U.S.C. § 3729, and asserts violations of her constitutional
right to due process, under 42 U.S.C. § 1983, and violations
of criminal statutes (18 U.S.C. § 1343, and New York Penal
Law § 175.10), and state law (defamation, libel, professional
misconduct under New York Education Law § 6509, and
parental alienation under New York Domestic Relations
Law § 240). The Court deems this the operative amended
complaint (ECF 8). 1 For the reasons set forth below, the
amended complaint is dismissed.
1 On March 16, 2025, less than a week after filing
the operative amended complaint, Plaintiff filed a
second amended complaint (SAC) (ECF 9), which
is similar but includes fewer allegations and claims.
A plaintiff is entitled to file one amended complaint
as of right, without leave of court. See Fed. R.
Civ. P. 15(a)(1). The Court therefore directs the
Clerk of Court to strike the SAC. (ECF 9.) The
Court nevertheless notes that it has reviewed the
SAC, and nothing in the SAC would alter the result
reached here.
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis complaint, or
any portion of the complaint, that is frivolous or malicious,
fails to state a claim on which relief may be granted, or
seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v.
Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).
The Court must also dismiss a complaint when it lacks subject
matter jurisdiction of the claims raised. See Fed. R. Civ. P.
12(h)(3).
While the law mandates dismissal on any of these grounds, the
Court is obliged to construe pro se pleadings liberally, Harris
v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and to interpret them
to raise the “strongest [claims] that they suggest,” Triestman
v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(internal quotation marks and citations omitted) (emphasis in
original). But the “special solicitude” in pro se cases, id. at
475 (citation omitted), has its limits—to state a claim, pro se
pleadings still must comply with Rule 8 of the Federal Rules
of Civil Procedure, which requires a complaint to make a short
and plain statement showing that the pleader is entitled to
relief. Fed. R. Civ. P. 8.
Rule 8 requires a complaint to include enough facts to state a
claim for relief “that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially
plausible if the plaintiff pleads enough factual detail to allow
the Court to draw the inference that the defendant is liable
for the alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009). In reviewing the complaint, the Court must
accept all well-pleaded factual allegations as true. Id. at 678.
But it does not have to accept as true “[t]hreadbare recitals of
the elements of a cause of action,” which are essentially just
legal conclusions. Twombly, 550 U.S. at 555. After separating
legal conclusions from well-pleaded factual allegations, the
Court must determine whether those facts make it plausible –
not merely possible – that the pleader is entitled to relief. Id.
BACKGROUND
*2 The following facts are drawn from the operative
amended complaint (ECF 8). In November 2022, the
Family Court directed Plaintiff's ex-husband, Joshua Bonsell
(“Joshua”), to pay for a therapist for their child, E.B. 2
Defendant Kathleen Muldowney, a licensed clinical social
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worker, was engaged to provide services to E.B. At some
point, Muldowney allegedly confirmed to Plaintiff that
Joshua would be solely responsible for payment.
2 Because federal court filings are generally
available to the public on the internet, Rule 5.2 of
the Federal Rules of Civil Procedure requires that
only initials be used to refer to the name of an
individual known to be a minor. Here, the Court has
temporarily restricted access to Plaintiff's pleadings
because she uses the complete name for her minor
child, as well as including what appear to be notes
of therapy sessions as exhibits.
In addition to Muldowney's meetings with E.B., Plaintiff met
with Muldowney on December 8 and 19, 2023. Plaintiff did
not realize that Joshua had been billed for these sessions.
(ECF 8 at 2.) On January 10, 2023, Muldowney informed
Plaintiff that Joshua would not pay for her “follow up
calls” about E.B and that Plaintiff was responsible for
paying for a canceled session on January 6, 2023, due
to Muldowney's cancellation policy. (Id.) On January 27,
2023, Muldowney billed Plaintiff for a session on January
26, 2023, and for the cancelled January 6, 2023 session,
totaling $500. Muldowney “falsely” described these on the
invoice as individual psychotherapy sessions for Plaintiff
“rather than [sessions for] a parent receiving an update on
her child.” (Id.) Moreover, Muldowney used a billing code
for “Other Recurrent Depressive Disorders,” thereby “falsely
implying a clinical diagnosis of Plaintiff.” (Id.) Thereafter,
Muldowney indicated that she could not meet with Plaintiff
on February 28, 2023, if the invoice remained unpaid.
In May 2023, Muldowney allegedly made a false report to the
New York City Administration for Children's Services (ACS)
that Plaintiff was “placing E.B. at risk.” (Id. at 3.) As a result,
Plaintiff was subjected to random drug and alcohol testing,
witness interviews and other “intrusive measures.” (Id.) On
July 17, 2023, ACS concluded that the allegations were
“unfounded.” (Id.)
On August 22, 2024, Muldowney submitted a letter damaging
to Plaintiff to the Family Court. (Id. at 3, ¶ 10.) Plaintiff states
that, before submitting this “libelous letter,” Muldowney had
seen E.B. only once between May 2023 and August 21, 2024.
(Id. at ¶ 13.) Moreover, the letter allegedly contradicts ACS
findings and Muldowney's own notes.
Plaintiff contends that Defendant: (1) engaged in fraudulent
billing, misrepresenting her meeting with Plaintiff as
psychotherapy, in violation of the FCA and federal and state
criminal law; (2) violated Plaintiff's constitutional right to due
process by systematically alienating Plaintiff from her son,
excluding her from significant clinical decisions regarding his
therapy, and making a false report to ACS about Plaintiff;
and (3) violated state law by defaming her, withholding
information, and causing Plaintiff emotional distress.
Plaintiff seeks damages, criminal penalties, and injunctive
relief, including termination of Defendant's license, an order
removing E.B. from Defendant's care, and a formal retraction
of allegedly false statements made to ACS and the Family
Court.
On April 22, 2025, Plaintiff submitted a letter stating that
she has filed complaints against Muldowney with the U.S.
Department of Health and Human Services, Office for
Civil Right and the New York State Office of Professional
Discipline. (ECF 10.)
DISCUSSION
A. False Claims Act claim
*3 Plaintiff styles her claim that Defendant billed her
$500 for individual therapy sessions, which Plaintiff believes
should have been billed differently, as a qui tam action under
the False Claims Act, 31 U.S.C. § 3729. An action under the
FCA imposes civil liability on any person who “knowingly
presents, or causes to be presented, to an officer or employee
of the United States Government ... a false or fraudulent claim
for payment or approval.” 31 U.S.C. § 3729(a). 3 Such suits
may be brought by the federal government, or by a private
person on behalf of the United States. 31 U.S.C. § 3730(a),
(b)(1); see United States ex rel. Eisenstein v. City of New York,
556 U.S. 928, 932 (2009).
3 Although the Court does not reach the merits
of Plaintiff's claim, she seems to suggest that
Defendant billed her personally, not the United
States, as is required for an FCA action.
In federal court, private parties “may plead and conduct
their own cases personally or by counsel ...” 28 U.S.C. §
1654. Because a qui tam action under the FCA is brought
in the name of the United States, which remains the real
party in interest, a private individual cannot bring such an
action pro se. See United States ex rel. Mergent Servs. v.
Flaherty, 540 F.3d 89, 93 (2d Cir. 2008) (“Because False
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Claims Act causes of action are not personal to relators,
they are statutorily barred from bringing such actions pro
se.”). 4 Plaintiff therefore cannot bring an action under the
FCA without counsel, and the Court therefore dismisses this
claim without prejudice. If Plaintiff wishes to pursue a claim
under the FCA, asserting claims involving fraud on the United
States, she must bring a separate action in which she is
represented by counsel.
4 Other courts of appeals have similarly held that
a private individual cannot bring an FCA action
pro se. See Downey v. United States, 816 F.
App'x 625, 627 (3d Cir. 2020) “[W]hile the False
Claims Act permits relators to control the False
Claims Act litigation, the claim itself belongs to
the United States ... We have held, however, that
an individual proceeding pro se may not represent
third parties in federal court.”); Georgakis v. Illinois
State Univ., 722 F.3d 1075, 1077 (7th Cir. 2013)
(“[T]o maintain a suit on behalf of the government,
the relator (as the qui tam plaintiff is termed) has
to be either licensed as a lawyer or represented by
a lawyer.”); Timson v. Sampson, 518 F.3d 870, 873
(11th Cir. 2008) (per curiam) (“Those Circuits that
have considered the issue have held that pro se
relators may not prosecute qui tam actions.... Their
rationale is persuasive.”); Stoner v. Santa Clara
Cnty. Off. of Educ., 502 F.3d 1116, 1127 (9th Cir.
2007) (holding that, although “pro se plaintiffs are
entitled to enforce their own independent rights
in federal court under § 1654, it has no direct
application here because the FCA makes clear that
a relator brings a qui tam suit on behalf of the
government”).
B. Criminal Charges
Plaintiff invokes federal criminal law, asserting that
Defendant has engaged in wire fraud, in violation of 18
U.S.C. § 1343. She also invokes New York Penal Law §
175.10, alleging falsification of Defendant's billing records.
Plaintiff cannot initiate the arrest or prosecution of an
individual because “the decision to prosecute is solely within
the discretion of the prosecutor.” Leeke v. Timmerman,
454 U.S. 83, 87 (1981). Plaintiff also cannot obtain a
court order directing prosecuting attorneys to initiate a
criminal proceeding against Defendant. Prosecutors possess
discretionary authority to bring criminal actions, and they are
“immune from control or interference by citizen or court.”
Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81,
87 (2d Cir. 1972). Accordingly, the Court dismisses Plaintiff's
claims based on federal and state criminal law because she
cannot initiate criminal proceedings against Defendant.
C. Due Process Claim
*4 Plaintiff asserts a claim, under 42 U.S.C. § 1983, for
an alleged violation of her due process rights under the
Fourteenth Amendment to the U.S. Constitution. A Section
1983 claim has two essential elements: “[i] the defendant
acted under color of state law; and [ii] as a result of the
defendant's actions, the plaintiff suffered a denial of ... federal
statutory rights, or ... constitutional rights or privileges.”
Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir.
1998); see also Flagg v. Yonkers Sav. & Loan Ass'n, 396
F.3d 178, 186 (2d Cir. 2005) (“Because the United States
Constitution regulates only the Government, not private
parties, a litigant claiming that his constitutional rights have
been violated must first establish that the challenged conduct
constitutes state action.”). A defendant acts under color of
state law when the defendant exercises “power possessed
by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.” West v.
Atkins, 487 U.S. 42, 49 (1988).
Plaintiff sues Defendant Muldowney, a private social worker.
Private parties, however, are generally not liable under
Section 1983. Sykes v. Bank of Am., 723 F.3d 399, 406 (2d
Cir. 2013) (quoting Brentwood Acad. v. Tenn. Secondary Sch.
Athletic Ass'n, 531 U.S. 288, 295 (2001)). 5 Being appointed
by the Family Court does not make a private social worker a
state actor. See Davis v. Whillheim, No. 17-CV-5793 (KPF),
2019 WL 935214, at *10 (S.D.N.Y. Feb. 26, 2019) (noting
that “[p]rivate social workers and counselors ... typically
do not qualify as state actors under § 1983,” and finding
that social worker “appointed by the court to represent the
interests of Plaintiff's daughter in the Family Court visitation
proceedings” was not a state actor). Private social workers are
not subject to liability under Section 1983 in situations where
they have “exercised their independent and professional
judgment” in the interest of a child and counseled a child in
their “capacity as a private provider of medical care,” even
when they have been appointed by the Family Court Id. at *10
(citing Kia P. v. McIntyre, 235 F.3d 749, 756 (2d Cir. 2000)).
5 The domestic relations exception to the courts’
diversity jurisdiction “divests the federal courts
of power to issue divorce, alimony, and child
custody decrees,” Ankenbrandt v. Richards, 504
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U.S. 689, 703 (1992); Am. Airlines, Inc. v. Block,
905 F.2d 12, 14-15 (2d Cir. 1990) (federal question
context). Here, it is unclear what type of Family
Court proceedings are at issue or whether they
are ongoing. Plaintiff's claim against Defendant for
making an allegedly false ACS report about her
appears to be distinct from the domestic dispute,
and Plaintiff seeks damages from Defendant
Muldowney. See, e.g., McKnight v. Middleton, 699
F. Supp. 2d 507, 516 (E.D.N.Y. 2010) (“[C]laims
solely seeking monetary relief will rarely invoke
the domestic relations exception),” aff'd, 434 F.
App'x 32 (2d Cir. 2011). This doctrine thus does not
appear to bar the Court from considering the merits
of Plaintiff's claims.
Abstention also does not appear to be warranted.
See generally Gristina v. Merchan, 131 F.4th
82, 88 (2d Cir. 2025) (explaining that “Younger
[abstention] generally prohibits courts from taking
jurisdiction over federal constitutional claims
that involve or call into question ongoing
state proceedings so as to avoid unnecessary
friction.”) (citations omitted). Plaintiff's claims are
distinguishable from those in Falco v. Justices of
the Matrimonial Parts of Sup. Ct. of Suffolk Cnty.,
805 F.3d 425, 427 (2d Cir. 2015), where abstention
was warranted because the plaintiff challenged
court rules on payment for court-ordered services
and defendants were the members of the judiciary
who had adopted those rules. See also Kirschner
v. Klemons, 225 F.3d 227, 238 (2d Cir. 2000)
(dismissal under the Younger abstention doctrine
is inappropriate where the litigant seeks money
damages for an alleged violation of Section 1983).
*5 Plaintiff's allegation that Defendant falsely reported to
ACS that Plaintiff had put her child “at risk,” which was
later dismissed or determined to be unfounded, does not
support a determination that Defendant was acting under
color of state law. “With near uniformity, courts in this
Circuit have [held] that reporting suspected child abuse alone
does not constitute state action.” Kurtz v. Hansell, No. 20-
CV-3401 (PAE), 2021 WL 1143619, at *9 (S.D.N.Y. Mar.
24, 2021) (quotation and citation omitted); J.C. v. Mark
Country Day Sch., No. 03-CV-1414 (DLI), 2007 WL 201163,
at *3 (E.D.N.Y. Jan. 23, 2007) (“In order to constitute state
actors, [Defendants] must have served as both a reporting and
enforcement mechanism for CPS.”). Nor does an allegation
that a defendant's report was false or mistaken change the
analysis. See, e.g., Harrison v. New York, 95 F. Supp. 3d 293,
324 (E.D.N.Y. 2015) (“[T]he fact that a private actor provided
false or mistaken information to law enforcement does not
render the supplier of information a state actor.”); Davis,
2019 WL 935214, at *10 (holding that allegation that a social
worker “provid[ed] the Family Court with allegedly defective
reports” was insufficient to show state action). Plaintiff's
allegation that Defendant made false reports to ACS and the
Family Court are insufficient to plead that Defendant was
engaged in state action. Plaintiff's Section 1983 claim against
Defendant must therefore be dismissed because Defendant is
a private party who was not acting under color of law. See 28
U.S.C. § 1915(e)(2)(B)(ii). 6
6 The procedural due process claim also fails for
the additional reason that there are no allegations
that Plaintiff lacked an opportunity to be heard at
a meaningful time and in a meaningful manner.
Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (“The
fundamental requisite of due process of law is the
opportunity to be heard ... at a meaningful time and
in a meaningful manner.”).
D. State law claims
A federal district court may decline to exercise supplemental
jurisdiction of claims under state law when it “has dismissed
all claims over which it has original jurisdiction.” 28 U.S.C.
§ 1367(c)(3). Generally, “when the federal-law claims have
dropped out of the lawsuit in its early stages and only
state-law claims remain, the federal court should decline
the exercise of [supplemental] jurisdiction.” Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 350 (1988) (footnote omitted).
Having dismissed the federal claims of which the Court
has original jurisdiction, the Court declines to exercise its
supplemental jurisdiction of any remaining claims under
state law that Plaintiff may be asserting. See Kolari v.
New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.
2006) (“Subsection (c) of § 1367 ‘confirms the discretionary
nature of supplemental jurisdiction by enumerating the
circumstances in which district courts can refuse its exercise.’
” (quoting City of Chicago v. Int'l Coll. of Surgeons, 522 U.S.
156, 173 (1997))). 7
7 Nothing in this order prevents Plaintiff from
pursuing any state law claims in a state court of
general jurisdiction.
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LEAVE TO AMEND
District courts generally grant a pro se plaintiff an opportunity
to amend a complaint to cure its defects unless it would be
futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir.
2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
Because the defects in Plaintiff's amended complaint cannot
be cured with an amendment, the Court declines to grant
Plaintiff further leave to amend her complaint.
CONCLUSION
The Court directs the Clerk of Court to strike the Second
Amended Complaint (ECF 9), which was filed without
leave of court. Plaintiff's claims under the False Claims Act
are dismissed without prejudice. Plaintiff's claims under 42
U.S.C. § 1983 are dismissed pursuant to 28 U.S.C. § 1915(e)
(2)(B)(ii). Plaintiff lacks standing to pursue criminal charges
and these claims are also dismissed. The Court declines, under
28 U.S.C. § 1367(c)(3), to exercise supplemental jurisdiction
of Plaintiff's state law claims.
The Court directs the Clerk of Court to enter judgment.
SO ORDERED.
All Citations
Slip Copy, 2025 WL 2042228
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Zietek v. Pinnacle Nursing and Rehab Center, Not Reported in Fed. Supp. (2024)
2024 WL 243436
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 243436
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Genevieve ZIETEK, Plaintiff,
v.
PINNACLE NURSING AND
REHAB CENTER, Defendant.
21-CV-5488 (AT) (JLC)
|
Signed January 23, 2024
Attorneys and Law Firms
Genevieve Zietek, Bronx, NY, Pro Se.
James P. Connors, Lewis Johs Avallone Aviles, LLP, Islandia,
NY, for Defendant.
REPORT & RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge,
*1 To the Honorable Analisa Torres, United States
District Judge:
Before the Court is a renewed motion to dismiss the complaint
under Rule 12(b)(1), 12(b)(2), and 12(b)(6) of the Federal
Rules of Civil Procedure brought by Pinnacle Nursing and
Rehab Center (“Pinnacle”). Plaintiff pro se Genevieve Zietek,
a former Pinnacle resident, did not file a formal opposition to
the motion. For the reasons set forth below, I recommend that
the motion be granted and Zietek's case be dismissed.
I. BACKGROUND
Zietek, an 82-year-old woman at the time of the filing of
the complaint, brought this action on June 17, 2021, alleging
physical abuse and theft by Pinnacle and its staff members,
harassment by co-residents, and malfeasance by a New York
state court judge who appointed a guardian for her in 2020.
Complaint (“Compl.”), Dkt. No. 1. The action was brought
via a 12-page, hand-written letter addressed to the Court that
was construed as a complaint. Id. 1
1 Zietek no longer resides at Pinnacle, but is instead
a resident at the Schervier Rehabilitation and
Nursing Center. Dkt. No. 34 at 7.
On July 28, 2021, the Court exercised its authority under 28
U.S.C. § 1915(e)(2)(B) to screen complaints filed in forma
pauperis. Order of Service (“July 28 Order”), Dkt. No. 7. In
doing so, it construed the complaint as sounding under the
Federal Nursing Home Reform Act (“FNHRA”), 42 U.S.C. §
1396(r). Id. at 1. The Court ruled that Zietek's claims against
New York State Supreme Court Justice Robert Johnson
were frivolous under the doctrine of judicial immunity and
accordingly dismissed them. Id. at 2 (citing Mireles v.
Waco, 502 U.S. 9, 11–12 (1991)). The Court went on to
analyze Zietek's claims against the individual defendants, and
determined that the primary concern of her complaint was
the alleged financial abuse she experienced at Pinnacle. Id. at
5. 2 The Court held that joinder of the individual defendants
was inappropriate because Zietek did not allege that they were
personally involved in that financial abuse and, in addition,
her claims against the individual defendants “do not allege
common questions of law and facts and do not arise out of the
same series of transactions or occurrences” as her financial
abuse claims. Id. The Court therefore severed Zietek's claims
against the five individual defendants and dismissed them
without prejudice. Id. Thus, only the claims against Pinnacle
remained.
2 This is consistent with Zietek's own description of
her lawsuit. See Notice of Appeal at 1, Dkt. No. 85
(describing her case as one for “financial assault”).
On August 18, 2021, Pinnacle moved to dismiss the complaint
under Rule 12(b)(1) for lack of subject matter jurisdiction,
Rule 12(b)(2) for lack of personal jurisdiction, and Rule 12(b)
(6) for failure to state a claim upon which relief may be
granted. Dkt. No. 15.
On August 23, 2021, Zietek moved for reconsideration of the
July 28 Order. Dkt. No. 19.
On January 4, 2022, Zietek submitted a letter to the Court,
seeking to add Matthew Varghese, an administrator of
Pinnacle's operating company Bay Park Center for Nursing,
as a named defendant to the case and raising allegations under
the Violence Against Women Act (42 U.S.C. § 13981). Dkt.
No. 33. 3 Also on January 4, Zietek filed her opposition to
the motion to dismiss. Plaintiff's Opposition to Motion to
Dismiss (“Pl. Opp.”), Dkt. No. 34. In her opposition, Zietek
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identified four statutes that allegedly provided bases on which
to support her claims: the Elder Justice Act (42 U.S.C. §
1397), the Older Americans Act (42 U.S.C. §§ 3001 et seq.),
the Violence Against Women Act, and the Notification and
Federal Employee Antidiscrimination and Retaliation Act
(“No Fear Act”) (5 U.S.C. § 2301 et seq.). 4 Id. at 7. Zietek
also sought $2,000,000 in damages. Id.
3 This request was part of a 37-page letter to
the Court. No motion to amend was ever made,
and Varghese was accordingly never added as a
defendant.
4 In its papers, Pinnacle also identifies a potential
mail interference claim under 18 U.S.C. § 1701.
As Zietek's allegations of mail interference concern
one of the individual defendants who had been
previously dismissed by the Court (Compl. at 9),
this Report will not address this claim in detail. But
in any event, 18 U.S.C. § 1701 does not provide
a private right of action. See, e.g., Sciolino v.
Marine Midland Bank–Western, 463 F. Supp. 128,
130–31 (W.D.N.Y. 1979) (holding “[a] civil claim
arising out of an alleged violation of penal statutes
relating to the mails—i.e., 18 U.S.C. §§ 1701,
1702, 1703, 1708 and 1709 is not” cognizable
(citations omitted)).
*2 On March 2, 2022, the Court denied Zietek's motion for
reconsideration of the July 28 Order. Dkt. No. 41. On that
same day, the Court denied, without prejudice to renewal,
Pinnacle's dismissal motion. Dkt. No. 42. Pinnacle, in its
motion papers, had provided the Court with information
indicating that Zietek was an “incapacitated person” requiring
appointment of a guardian. Dkt. No. 16-3. Given this
information, and Rule 17(c)(2) of the Federal Rules of Civil
Procedure's requirement that the Court “appoint a guardian
ad litem ... to protect a[n] incompetent person who is
unrepresented in an action,” the Court determined that it
was obliged to evaluate Zietek's competency before it could
reach the merits of her claims. Id. at 3 The issue of Zietek's
competency was subsequently referred to me for a hearing. Id.
On August 8, 2022, Zietek requested a change of venue to
the White Plains Courthouse, alleging unfair treatment by the
Court. Dkt. No. 57. This request was denied. Dkt. Nos. 61, 67.
On December 13, 2022, following a hearing that featured
testimony from physicians and social workers who had
treated Zietek but which she herself refused to attend, I issued
a Report and Recommendation recommending that Zietek be
found competent to proceed with her lawsuit and that Pinnacle
be given leave to renew its motion to dismiss. Dkt. No. 80.
On January 4, 2023, Zietek filed an interlocutory appeal
of the Court's order denying Pinnacle's motion to dismiss.
Dkt. No. 83. She also filed an objection to the Report and
Recommendation, arguing that the recommendation to allow
Pinnacle to resubmit its motion to dismiss was improper. Dkt.
No. 84.
On February 2, 2023, the Report and Recommendation was
adopted and Pinnacle was directed to renew its motion to
dismiss by February 13, 2023. Dkt. No. 86.
On February 13, 2023, Pinnacle renewed its motion to
dismiss. Dkt. No. 87. In support, it filed a memorandum of
law (“Def. Mem.”). Dkt. No. 87-9. Zietek was directed to
submit her opposition by March 7, 2023. Dkt. No. 88. In
response, Zietek submitted a letter to the Court (1) insisting
that the Court's adoption of the Report and Recommendation
was invalid; (2) claiming that the case was stayed pending
her interlocutory appeal; (3) demanding that an additional
Pinnacle representative be added as a named defendant; (4)
increasing her damages demand to $14,000,000; and (5)
alleging a conspiracy between her current nursing home and
Pinnacle. Dkt. No. 89. Then, by letter dated February 28,
she objected to Pinnacle's motion (“Pl. Obj.”). Dkt. No. 92.
While the letter primarily discussed her objections to the New
York state court guardianship proceeding, she also claimed
that Pinnacle did not renew its motion by the Court's deadline.
Id. at 1. In lieu of a reply brief, Pinnacle submitted a letter to
the Court addressing only the timeliness of its motion. Dkt.
No. 93. 5
5 Zietek argued that the motion was untimely, as
she had received it on February 16. Pl. Obj. at
1. However, the motion was timely filed via the
Court's Electronic Case Filing system on February
13. Dkt. No. 87.
Subsequent to her objections, Zietek submitted additional
letters to the Court, reiterating her generalized grievances,
seeking more time to reply to the motion to dismiss, and
insisting that the case was stayed pending appeal. Dkt. No 94.
By order dated November 2, 2023, the Court responded by
restating that the case was not stayed, and that Zietek should
submit her formal opposition to the motion by December 7,
2023. Dkt. No. 95. No further opposition was submitted.
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On December 13, 2023, Pinnacle's motion was referred to me
for a report and recommendation. Dkt. No 96. Zietek objected
to this referral. Dkt. No. 98.
II. DISCUSSION
*3 Pinnacle has moved to dismiss Zietek's claims pursuant
to Rule 12(b)(1) for lack of subject matter jurisdiction or, in
the alternative, pursuant to Rule 12(b)(6) for failure to state a
claim on which relief can be granted. 6
6 In its Notice of Motion, Pinnacle also cited to Rule
12(b)(2) and argued that the Court lacked personal
jurisdiction, but it did not pursue this argument in
its renewed motion papers.
A. Applicable Law
1. Dismissal for Lack of Subject Matter
Jurisdiction Under Rule 12(b)(1)
“Dismissal of a case for lack of subject matter jurisdiction
under Rule 12(b)(1) is proper when the district court lacks the
statutory or constitutional power to adjudicate it.” Gelmart
Indus., Inc. v. Everready Battery Co., Inc., No. 13-CV-6310
(PKC), 2014 WL 1512036, at *2 (S.D.N.Y. Apr. 15, 2014)
(quoting Ford v. D.C. 37 Union Local 1549, 579 F.3d 187,
188 (2d Cir. 2009)). In deciding such a motion, the Court
construes the complaint in the plaintiff's favor and accepts
all factual allegations as true. Id. However, “[j]urisdiction
must be shown affirmatively, and that showing is not made by
drawing from the pleadings inferences favorable to the party
asserting it.” Ryan v. United States, No. 15-CV-2248 (GHW),
2015 WL 7871041, at *3 (S.D.N.Y. Dec. 3, 2015) (quoting
APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003)).
In evaluating a Rule 12(b)(1) motion, “the Court may
consider evidence outside the pleadings.” Id. “[P]laintiffs
[may] come forward with evidence of their own to controvert
that presented by the defendant if the affidavits submitted on
a 12(b)(1) motion ... reveal the existence of factual problems
in the assertion of jurisdiction.” Carter v. HealthPort Techs.,
LLC, 822 F.3d 47, 57 (2d Cir. 2016) (quotation marks
omitted). “However, the plaintiffs are entitled to rely on
the allegations in the Pleading if the evidence proffered by
the defendant is immaterial because it does not contradict
plausible allegations that are themselves sufficient to show
standing.” Id.
Dismissals for lack of subject matter jurisdiction are without
prejudice. See, e.g., Green v. Dep't of Educ. of City of New
York, 16 F.4th 1070, 1074 (2d Cir. 2021).
2. Dismissal for Failure to State
a Claim Under Rule 12(b)(6)
To survive a Rule 12(b)(6) motion, a plaintiff must plead
sufficient facts “to state a claim to relief that is plausible on
its face” and that satisfy Federal Rule of Civil Procedure 8(a)
(2). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although
the Court “construe[s] the pleadings and affidavits in the
light most favorable to plaintiffs ... the Court will not draw
argumentative inferences in the plaintiff's favor and need
not accept as true a legal conclusion couched as a factual
allegation.” Gilbert v. Indeed, Inc. 513 F. Supp. 3d 374, 391
(S.D.N.Y. 2021) (cleaned up). Rule 8(a)(2) of the Federal
Rules of Civil Procedure requires “a short and plain statement
of the claim showing that the pleader is entitled to relief,” and
Rule 8(d)(1) requires that each allegation be “simple, concise,
and direct.” Fed. R. Civ. P. 8.
In considering a motion to dismiss, a district court “accept[s]
all factual claims in the complaint as true, and draw[s]
all reasonable inferences in the plaintiff's favor.” Lotes Co.
v. Hon Hai Precision Indus. Co., 753 F.3d 395, 403 (2d
Cir. 2014) (citation and internal quotation marks omitted).
However, this tenet is “inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. 662, 678. Instead, the pleading's “factual
allegations must be enough to raise a right to relief above the
speculative level, ... i.e., enough to make the claim plausible.”
Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir.
2010) (internal quotation marks and brackets omitted).
*4 Dismissals for failure to state a claim are considered to
be “with prejudice.” See, e.g., Lynch v. Hanley, No. 21-CV-25
(GTS), 2021 WL 2309688, at *2 n.4 (N.D.N.Y. June 7, 2021)
(collecting cases and holding dismissal for failure to state a
claim viewed as adjudication “on the merits” of the action,
and thus dismissal “with prejudice” appropriate).
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3. Standards for Pro Se Plaintiffs
“Pro se plaintiff filings are liberally construed, and a pro
se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.” Franklin v. X Gear 101, LLC, No. 17-CV-6452
(GBD) (GWG), 2018 WL 3528731, at *4 (S.D.N.Y. July 23,
2018) (cleaned up), adopted by 2018 WL 4103492 (Aug. 28,
2018); see also Hill v. Curcione, 657 F.3d 116, 122 (2d Cir.
2011) (review of pro se complaint for sufficiency requires
“special solicitude, interpreting complaint to raise strongest
claims that it suggests” (cleaned up)). “However, even the
pleadings of pro se plaintiffs ‘must contain factual allegations
sufficient to raise a right to relief above the speculative level.’
” Franklin, 2018 WL 3528731, at *4 (quoting Dawkins v.
Gonyea, 646 F. Supp. 2d 594, 603 (S.D.N.Y. 2009)); see also
Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“Even
in a pro se case ... threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” (citation omitted)).
B. Analysis
1. Zietek's Claims Should Be Dismissed
for Lack of Subject Matter Jurisdiction
As noted above, Zietek's case-initiating document was not
structured as a formal legal complaint. Instead, it consisted
of a number of grievances, which can be divided into several
categories: first, an alleged conspiracy by Pinnacle, aided by
her court-appointed guardian, to keep her at Pinnacle and steal
her savings (Compl. at 4–6); second, alleged physical abuse
by individual health aides at Pinnacle (id. at 6–8); and third,
harassment by other residents at Pinnacle (id. at 10–11). In
its July 28 Order, the Court determined that it is this first
claim that forms the core of Zietek's complaint, and severed
and dismissed the other claims and their related individual
defendants. Dkt. No. 7. Accordingly, the analysis that follows
only concerns whether Zietek's allegations of a conspiracy to
steal her money by keeping her at Pinnacle are sufficient to
survive a motion to dismiss.
There is no dispute that both Zietek and Pinnacle are residents
of New York State. Compl. at 2; Dkt. No. 37-1. Therefore,
the diversity of parties under 28 U.S.C. § 1332 cannot be
a source of jurisdiction in this case. Any jurisdiction must
consequently stem from 28 U.S.C. § 1331, which provides
that “[t]he district courts shall have original jurisdiction
of all civil actions arising under the Constitution, laws, or
treaties of the United States,” also known as federal question
jurisdiction.
Zietek did not submit a substantive opposition to the pending
motion. As a result, the Court will rely on her opposition to the
previous motion to dismiss, in which she argued that the Court
has federal question jurisdiction. Dkt. No. 34, at 6. Zietek lists
four statutes that she alleges provide a basis for her all claims:
the Elder Justice Act, the Older Americans Act, the Violence
Against Women Act, and the No Fear Act. Id. Additionally,
Zietek referred to, and the Court previously construed Zietek
as making a claim under, the FNHRA. Id.; July 28 Order at 1.
The Court will briefly analyze each in turn.
*5 Courts have consistently held that the Elder Justice Act
does not confer a private right of action. See, e.g., Kampfer v.
Nathan Littauer Hosp., No. 1-22-CV-1235 (TJM/ML), 2023
WL 4847279, at *4 (N.D. N.Y. July 28, 2023); Cook v. Doe,
No. 21-CV-01720-JSC, 2021 WL 2444959, at *3 (N.D. Cal.
May 17, 2021); Wister v. White, No. 19-CV-05882-WHO,
2019 WL 6841370, at *3 (N.D. Cal. Dec. 16, 2019) (Elder
Justice Act does not “[confer] a private right of action”). It
therefore cannot serve as a basis for this Court's jurisdiction.
The Violence Against Women Act also confers no private
right of action. See, e.g., United States v. Morrison, 529
U.S. 598, 627 (2000) (invalidating Act's private remedy
provision); Clesi v. Zinc Corp., No. 01-CV-374, 2001 WL
1223456, at *2 (N.D.N.Y. Oct. 11, 2001). Like the Elder
Justice Act, it cannot provide jurisdiction in this case.
The Older Americans Act establishes federal programs and
grants to states to provide for the welfare of the elderly. It too
does not confer any private right of action. See, e.g., Eldereiny
v. TD Ameritrade, Inc., No. 8:21-CV-451, 2022 WL 801118,
at *3 (D. Neb. Mar. 16, 2022); Abdul-Hamid v. Fed. Savings
Bank, No. 19-CV-03013-CMA-NYW, 2020 WL 1685573,
at *3 (D. Colo. Apr. 7, 2020); Roa v. City of Denison, No.
4:16-CV-115, 2017 WL 9287012, at *17 (E.D. Tex. Aug. 29,
2017), adopted by, 2017 WL 4675062 (Oct. 18, 2017).
The No Fear Act, a law to protect federal employees from
workplace discrimination, is not applicable to Zietek's case.
Moreover, “[o]f the few courts that have considered claims
made under the No Fear Act, none have found that the Act
provides a private cause of action[.]” Baney v. Mukasey, No.
3:06-CV-2064-L, 2008 WL 706917, at *6 (N.D. Tex. Mar.
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14, 2008); see also Lee v. Saul, No. 19-CV-6553 (PGG) (SN),
2022 WL 1051216, at *12 (S.D.N.Y. Feb. 10, 2022), adopted
by Order dated March 23, 2022 (Dkt. No. 51); Glaude v.
United States, 2007 WL 2682957, at *2 (Fed. Cir. Sept. 7,
2007); Pedicini v. U.S., 480 F. Supp. 2d 438, 459 (D. Mass.
2007); Mills v. Barreto, 2004 WL 3335448, at *3 (E.D. Va.
Mar. 8, 2004).
The Supreme Court recently ruled that the FNHRA can,
in certain circumstances, convey a private right of action
enforceable against state actors under 42 U.S.C. § 1983.
See Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599
U.S. 166, 184 (2023). However, Zietek does not allege that
Pinnacle is a state actor, or that it operates under color
of law. See Tancredi v. Metro. Life Ins. Co., 316 F.3d
308, 312 (2d Cir. 2003) (“A plaintiff pressing a claim of
violation of his constitutional rights under § 1983 is ...
required to show state action.”). The Second Circuit has
held that the FNHRA does not convey a private right of
action against private parties. Prince v. Dicker, 29 F. App'x
52, 54 (2d Cir. 2002) (“[T]he Nursing Home Reform Act's
provisions do not confer a right of action on [the plaintiff]
that can be enforced against a private nursing home[.]”);
see also Baum v. N. Dutchess Hospital, 764 F. Supp. 2d
410, 425 (N.D.N.Y. 2011) (“FNHRA does not clearly and
unambiguously authorize a private federal cause of action for
nursing home residents against private nursing homes.”); cf.
Pantalone ex rel. Pantalone v. County of Fulton, No. 6:10-
CV-913, 2011 WL 1457935, at *8 (N.D.N.Y. Apr. 15, 2011)
(finding FNHRA confers rights enforceable under § 1983
against state actors). Because Pinnacle, as a private nursing
home, is not a state actor, the FNHRA does not provide Zietek
with a cause of action against it and cannot provide a basis
for jurisdiction.
*6 Therefore, none of the statutes cited by plaintiff provides
for a right of action against a private defendant such as
Pinnacle. The Court accordingly lacks jurisdiction to hear
Zietek's claims under any of the cited authorities, and the case
against Pinnacle should be dismissed without prejudice for
lack of subject matter jurisdiction.
2. Zietek Fails to State a Claim
on Which Relief Can Be Granted
If the Court declines to dismiss Zietek's claims under Rule
12(b)(1), it should nevertheless dismiss them under Rule
12(b)(6) for failure to state a claim on which relief can be
granted.
In her initial complaint, Zietek asked the Court to
impose a variety of civil and criminal penalties on the
individual defendants: termination of employment, criminal
prosecution, restraining orders, and psychiatric counselling.
Compl. at 11–12. She also sought “all my money back” and
“compensation for illegally holding me against my will.”
Id. at 6. In later correspondence to the Court, she specified
that she wanted two million dollars (Def. Mem. at 7) or
fourteen million dollars (Dkt. No. 92, at 1) in compensation
for Pinnacle's alleged wrongs.
Even considering the latitude provided to pro se plaintiffs,
Zietek fails to make “a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. Her allegations that Pinnacle
ascertained her savings, coordinated a fraudulent scheme to
have her declared incompetent, successfully deceived a New
York state court, and then, with the assistance of the court-
appointed guardian, transferred her money to Pinnacle, are
entirely unsubstantiated and not plausible on their face.
Zietek does not offer anything in her pleadings to support
the allegation that her guardian and/or his employer, the
Bronx Community Guardianship Network, conspired with
Pinnacle. She does provide annotated copies of some of
her bank statements, but insofar as they contain allegations
of misappropriation, they are directed at the guardian, not
Pinnacle. She complains that the guardian paid money to
Pinnacle without her consent, paid himself $500 per month,
and did not disburse her social security and stimulus checks
to her. Dkt. No. 56, at 41–42. Her evidence consists of records
of disbursements provided to her per the Guardianship Order,
but these disbursements were explicitly permitted by the
Guardianship Order. See Dkt. No. 87-7, at 8–10 (“[T]he
Guardian shall have the following powers: ... (a) Marshal
the Incapacitated Person's assets ... and to apply so much of
the income and principal as necessary for the Incapacitated
Person's comfort, support, maintenance and well-being; ...
Endorse, collect, negotiate, deposit and withdraw Social
Security and other pension, annuity, or benefit checks”);
id. at 13 (“[T]he Guardian shall be compensated in the
amount of $500 per month, which sum shall be deducted
from the Incapacitated Person's income on a monthly basis.”).
Throughout her communications with the Court, Zietek has
repeatedly attacked the Guardianship Order. See, e.g., Dkt.
No. 92, at 1 (demanding the entire guardianship case be
voided). Her claims of financial abuse are predicated on
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the initial guardianship proceeding being improper. But this
Court is not the proper forum to challenge the Guardianship
Order.
Zietek's allegations, even distilled from her numerous filings,
fail to meet the plausibility standard established by Iqbal.
Because the Court cannot draw a reasonable inference that
Pinnacle is responsible for the alleged misconduct, the claims
against it should be dismissed. See, e.g., Jones v. Trump, Nos.
96-CV-2995 (SAS), 96-CV-6927 (SAS), 1997 WL 277375,
at *7 (S.D.N.Y. May 27, 1997) (“[C]omplaints which ramble,
which needlessly speculate, accuse and condemn, and which
contain circuitous diatribes far removed from the heat of
the claim do not comport with the requirements of Rule
8.” (quotation omitted)).
3. Zietek Should Not Be Granted
Leave to Further Amend
*7 In the Second Circuit, “a pro se complaint should not
be dismissed without the Court granting leave to amend at
least once when a liberal reading of the complaint gives
any indication that a valid claim might be stated.” Dolan v.
Connolly, 794 F.3d 290, 295 (2d Cir. 2015). Nonetheless,
“leave to amend is not necessary when it would be futile.”
Petway v. New York City Transit Auth., 2011 WL 6157000,
at *1 (2d Cir. Dec. 13, 2011); see also Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000) (finding leave to replead
would be futile where complaint, even when read liberally,
did not “suggest[ ] that the plaintiff has a claim that [ ]he
has inadequately or inartfully pleaded and that [ ]he should
therefore be given a chance to reframe”).
In this case, granting Zietek leave to further amend her
complaint would be futile. She has repeatedly ignored Court
directives to file her substantive opposition papers and,
indeed, directly defied a Court order to appear at her own
competency hearing. Dkt. No 63, at 4 (refusing to attend the
competency hearing as it would be “torture and humiliation”);
Dkt. No 89, at 2 (describing the mental competency hearing
as “corrupt” and “criminal”). Instead, she has repeatedly
submitted a growing list of grievances directed not only at
Pinnacle, but at non-parties and the Court itself. See, e.g., id.
at 1 (accusing her current nursing home of conspiring with
Pinnacle to steal her litigation materials); Dkt. No. 98 (letter
objecting to the amended referral order consisting primarily
of ad hominem attacks on the Court). Furthermore, there is no
indication that granting Zietek leave to further amend would
enable her to cure the underlying jurisdictional defects in her
case. Insofar as she is seeking monetary compensation for an
alleged scheme to defraud her of her assets by Pinnacle, there
is no basis for federal court jurisdiction.
III. CONCLUSION
For the above reasons, Zietek's case should be dismissed in
its entirety. Dismissal should be without prejudice if it is for
lack of jurisdiction, or with prejudice if it is for failure to state
a claim on which relief can be granted.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the
Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from service of this Report to file written
objections. See also Fed. R. Civ. P. 6. Such objections, and
any responses to such objections, shall be filed with the Clerk
of Court, with courtesy copies delivered to the chambers
of the Honorable Analisa Torres, United States Courthouse,
500 Pearl Street, New York, NY 10007. Any requests for an
extension of time for filing objections must be directed to
Judge Torres.
FAILURE TO FILE OBJECTIONS WITHIN
FOURTEEN (14) DAYS WILL RESULT IN A
WAIVER OF OBJECTIONS AND WILL PRECLUDE
APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner &
Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd
& Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010). If Zietek
does not have access to cases cited herein that are reported on
Westlaw, she should request copies from counsel for Pinnacle.
See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009); Local
Civil Rule 7.2, Local Rules of the United States District
Courts for the Southern and Eastern Districts of New York.
All Citations
Not Reported in Fed. Supp., 2024 WL 243436
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-01789-BKS-CBF Document 6 Filed 04/17/26 Page 138 of 138