Bell v. Kaleida Health et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
NICOLE M. BELL,
REPORT AND
RECOMMENDATION
Plaintiff,
v.
24-cv-00572(JLS)(JJM)
KALEIDA HEALTH; JONATHAN HART;
KIMBERLY WEAR; VANESSA O’NEIL;
UNIVERSITY OF THE STATE OF NEW YORK, by
and through the Board of Regents; LESTER W.
YOUNG, JR., Chancellor, Board of Regents of the
University of the State of New York, in his
official capacity; and BETTY A. ROSA,
Commissioner of the New York State
Education Department, in her official capacity,
Defendants.
_________________________________________
Plaintiff Nicole Bell commenced this removed action in the New York State
Supreme Court, Erie County, alleging a variety of claims arising from her termination by
defendant Kaleida Health as a Nursing Supervisor and subsequent disciplinary proceeding
commenced by the State Defendants.1 See Complaint [1-1].2
Before the court are the motions by the State Defendants to dismiss the Complaint
pursuant to Fed. R. Civ. P. (“Rules”) 12(b)(1) and 12(b)(6) [7], and by the Kaleida Defendants3
1 	The “State Defendants” collectively refers to the University of the State of New York, Chancellor
Lester Young, Jr., and Commissioner Betty Rosa.
2 	Bracketed references are to CM/ECF docket entries and page references are to CM/ECF
pagination.
3 	The “Kaleida Defendants” collectively refers to Kaleida Health, Jonathan Hart, Vanessa O’Neil,
and Kimberly Wear.
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to dismiss the Complaint pursuant to Rule 12(b)(6) [9], which have been referred to me by
District Judge John L. Sinatra, Jr. for initial consideration [6]. Having reviewed the parties’
submissions [7, 9, 13, 14, 22, 23], I recommend that the motions be granted.
BACKGROUND
Bell was allegedly a long tenured employee of Kaleida, most recently employed
as the Nursing Supervisor at its HighPointe on Michigan skilled nursing facility. See Complaint
[1-1], ¶10. She allegedly suffers from anxiety which required her to take intermittent leave
under the Family and Medical Leave Act (“FMLA”). See id., ¶13.
In January 2022, Bell allegedly returned from FMLA leave and that month
reported to defendants Jonathan Hart, Kaleida’s Vice President of Long-Term Care, and
Kimberly Wear, Kaleida’s Acting Director of Nursing, that there was a “chronically unsafe
condition in the facility because of severe understaffing”. She requested a “correction plan for
this staffing crisis, but none was generated or delivered”. Id., ¶¶3, 4, 20. On several occasions,
understaffing allegedly resulted in patients not “being administered their medications”. Id., ¶22.
However, “no one was prosecuted” for these omissions. Id.
On February 22, 2022, Bell allegedly completed her day shift and began the
overnight shift, but “quickly realized” that there were only seven nurses on duty for a shift that
required at least 13 nurses. Id., ¶¶23, 24. Bell alleges that she followed “protocol” in this
circumstance by first requesting “multiple nurses to float”, but when these attempts failed, she
reported to her supervisor, Vanessa O’Neil, Kaleida’s Assistant Director of Nursing, that “an
unsafe situation developed”. Id., ¶¶5, 24-25. She allegedly informed O’Neil that she “would
have to go home because she could not handle the stress of the chronic understaffing . . . . having
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only recently returned from a disability leave”, and that she “was not able to administer
medications because she had not done so in 12 years, and . . . believed that it would be unsafe for
her to do so”. Id., ¶¶28-30. O’Neil allegedly told her not to leave, and stated that she would
“help by coming in herself to administer medications, if necessary. But she never did.” Id., ¶31.
Allegedly “when there is staffing shortage, the nurse managers of each unit are
supposed to be called”, but when Bell asked O’Neil “about this . . . she did not respond”. Id.,
¶33. Nevertheless, Bell allegedly completed her shift “without any incident - no codes, no falls,
no emergencies”. Id., ¶34. However, when she returned to work the next day, she was allegedly
“ambushed by [d]efendants, who told her that she was being placed on administrative leave
because some patients allegedly had not received their medications the night before, and that an
investigation would ensue”. Id., ¶36. Wear also allegedly told Bell that she had been reported to
“‘the Office of Professional Conduct’”. Id., ¶37.
According to Bell, “[d]efendants had concocted a trumped-up story to shift blame
onto [her] for [their] failure to have adequate staffing” and “punish [her] for whistle-blowing and
resistance”. Id., ¶¶39, 42. She also contends that defendants’ investigation into her alleged
“gross negligence” was “a sham”. Id., ¶44.
As a result of this alleged conduct, Bell asserts the following Causes of Action:
-- First: A violation of New York Executive Law §296 for discharging her because of
her disability and for failing to give her a reasonable accommodation;
-- Second: A violation of New York Labor Law §741 for discharging her in retaliation
for her complaints of chronic understaffing;
-- Third: A violation of equal protection pursuant to 42 U.S.C. §1983; 4
4 	The Notice of Removal [1] premised jurisdiction on the fact that “the Complaint alleges
violations of Section 1983 and the United States Constitution”. Id., ¶8.
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-- Fourth: Injunctive relief for “dismissal and cessation of the [pending] enforcement
action against her nursing license”; and
-- Eighth: A declaratory judgment pursuant to New York Civil Practice Law and Rules
3001. 5
Although the causes of action are broadly asserted against the “defendants”, the
State Defendants interpret the Complaint as only asserting the Third, Fourth and Eighth Causes
of Action against them (see State Defendants [7-1] at 7), and the Kaleida Defendants interpret
the Complaint as asserting the First through Third and Eighth Causes of Action against them. See
Kaleida Defendants [9-1] at 12. This is not disputed by Bell.
DISCUSSION
The standards for dismissal under Rules 12(b)(6) and 12(b)(1) differ. “To survive
a Rule 12(b)(6) motion to dismiss, a plaintiff must allege enough facts to state a claim for relief
that is plausible on its face . . . and provide more than a formulaic recitation of the elements of a
cause of action or naked assertions devoid of further factual enhancement.” Shara v. Maine-
Endwell Central School District, 46 F.4th 77, 82 (2d Cir. 2022). 	Unless it would be futile, “this
circuit strongly favors liberal grant of an opportunity to replead after dismissal of a complaint
under Rule 12(b)(6)”. Porat v. Lincoln Towers Community Association, 464 F.3d 274, 276 (2d
Cir. 2006).
5 	In response to defendants’ motions to dismiss, Bell has abandoned the Fifth (intentional infliction
of emotional distress), Sixth (negligent infliction of emotional distress), and Seventh (defamation) Causes
of Action. See Bell’s Memorandum of Law [14] at 4 n. 1.
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By contrast, “[a] case is properly dismissed for lack of subject matter jurisdiction
under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to
adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “A motion to
dismiss for sovereign immunity under the Eleventh Amendment is properly brought pursuant to
Rule 12(b)(1).” Long Island Pure Water Ltd. v. Cuomo, 375 F. Supp. 3d 209, 215 (E.D.N.Y.
2019).
A. 	State Defendants’ Motion to Dismiss
1. 	Sovereign Immunity
The State Defendants argue that Eleventh Amendment sovereign immunity bars
suit against the University of the State of New York and the monetary damages claims against
Chancellor Young and Commissioner Rosa, who are sued in their official capacities. See State
Defendants’ Memorandum of Law [7-1], Points I and II. 	In response, Bell does not dispute that
Eleventh Amendment sovereign immunity would bar the claims, but instead contends that the
removal of this action from New York State Supreme Court to this court waived the State
Defendants’ sovereign immunity. See Bell’s Memorandum of Law [14], Point I. In support of
this argument Bell relies solely on Lapides v. Board of Regents of University System of Georgia,
535 U.S. 613 (2002).
However, Lapides was limited solely “to the context of state-law claims”. 535
U.S. at 617. It also “stands for the more limited rule that where a state’s immunity has already
been waived or abrogated in state court, it cannot escape liability by removing the matter to
federal court”. Nichols v. Livingston County, 2019 WL 3935998, *9 (W.D.N.Y. 2019); Lapides,
535 U.S. at 617-18 (declining to “address the scope of waiver by removal in a situation where
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the State’s underlying sovereign immunity from suit has not been waived or abrogated in state
court”); Mone v. New York State Unified Court System, 2023 WL 4424093, *6 (E.D.N.Y.),
adopted, 2023 WL 4073770 (E.D.N.Y. 2023), aff’d, 2024 WL 1109258 (2d Cir. 2024) (“the
Supreme Court held in Lapides that a State’s ‘act of removing a lawsuit from state court to
federal court waives’ Eleventh Amendment immunity, at least if the State has waived immunity
to suit in state court as well” (emphasis added)).
That is not the case here. The University of the State of New York “would have
been immune to [p]laintiff’s federal claims in New York State Supreme Court, where the action
was initially filed”. Nichols, 2019 WL 3935998 at *10 (citing N.Y. Constitution, Article VI, §9).
Thus, Bell’s reliance on Lapides is misplaced. In any event, even if the State Defendants’
removal of this case to federal court waived their Eleventh Amendment immunity, general
sovereign immunity would remain. See Beaulieu v. Vermont, 807 F.3d 478, 490 (2d Cir. 2015).
Therefore, I recommend that Bell’s claims against the University of the State of
New York and the monetary damages claims against Chancellor Young and Commissioner Rosa
be dismissed, with prejudice.
2. 	Third Cause of Action: 42 U.S.C. §1983
This Cause of Action, which is brought against all defendants, relate to the
alleged commencement in February 2023 of a disciplinary proceeding against Bell by the State
Defendants through their Office of Professional Discipline. See Complaint [1-1], ¶72. Bell
alleges that this “enforcement action . . . is discriminatory and singles [her] out for punishment in
retaliation for exercising her rights to disclose dangerous conduct and in opposing unlawful
activity posing a danger to public health and safety”. Id., ¶75. According to her, “[n]o similarly
situated nurses have been subjected to enforcement by [d]efendants with respect to the events on
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February 22, 2022”, and that this “selective treatment was motivated by animus and meant to
punish [her] in retaliation for her disclosure of and opposition to [d]efendants’ wrongful conduct
and to shift blame onto [her] for their own fault”. Id., ¶¶75, 77.
“[W]here a plaintiff does not claim to be a member of a constitutionally protected
class, [s]he may bring an [e]qual [p]rotection claim pursuant to one of two theories: (1) selective
enforcement, or (2) ‘class of one.’” Kirton v. Doe, 2024 WL 809904, *5 (S.D.N.Y. 2024).
Under a “class of one” theory of equal protection, a plaintiff must allege that “she has been
intentionally treated differently from others similarly situated and that there is no rational basis
for the difference in treatment”. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). By
contrast, to state an equal protection claim under a selective enforcement theory, a plaintiff must
allege that she was “treated differently from another similarly situated comparator” and that “the
selective treatment was motivated by an intention to discriminate on the basis of impermissible
considerations, such as . . . to punish or inhibit the exercise of constitutional rights, or by a
malicious or bad faith intent to injure the person”. Hu v. City of New York, 927 F.3d 81, 95 (2d
Cir. 2019).6
“[B]oth types of Equal Protection claims require a showing that the plaintiff was
treated differently from another similarly situated comparator”, but the standard for what
constitutes “similarly situated” differs between the claims. Hu, 927 F.3d at 93. Whereas a class
of one claim “requires an ‘extremely high’ degree of similarity between a plaintiff and
6 	Although not raised by the State Defendants, it does not seem plausible that the State Defendants’
would have an improper motivation for its alleged selective enforcement. The Complaint offers two
theories: to cover up the Kaleida Defendant’s negligence and to punish Bell for her complaints.
Complaint [1-1], ¶¶77, 85, 93. However, there are no allegations that the State Defendants were even
aware of any negligence by the Kaleida Defendants or Bell’s earlier staffing complaints.
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comparator”, id.,7 a selective enforcement claim requires a “‘reasonably close resemblance’
between a plaintiff’s and comparator’s circumstances”. Id.
The State Defendants argue that Bell’s claim must be dismissed because she “fails
to adequately allege similarly situated comparators”. State Defendants’ Memorandum of Law [7-
1] at 12. I agree. 	Although “issues regarding appropriate comparators are often addressed in the
context of a summary judgment motion following discovery, courts grant motions to dismiss
where the complaint failed to proffer sufficient facts regarding comparators to plausibly support
the contention the comparators were similarly situated to the plaintiff”. Freckleton v. Mercy
College NY, 2023 WL 2648827, *6 (S.D.N.Y. 2023).
The Complaint broadly alleges that there were “allegations of gross negligence
and negligence against . . . Bell” (Complaint [1-1], ¶72), but without any specificity as to what
alleged acts of gross negligence and negligence were asserted in the disciplinary proceeding, it is
difficult, if not impossible, to adequately allege that similarly situated individuals were treated
differently. See State Defendants’ Memorandum of Law [7-1] at 12.
In any event, even assuming that the alleged acts of negligence and gross
negligence were only related to patients not being medicated on the February 22-23, 2022 shift,
the Complaint still falls short. The Complaint identifies the comparators as “the other nurses on
duty and who should have been on duty, like O’Neil and Wear”. Complaint [1-1], ¶87. In
response to the motion, Bell argues that these individuals “had overlapping responsibilities
concerning patient care”, but that allegation is not in the Complaint, which is devoid of any
allegations that anyone other than Bell - the Nursing Supervisor - had responsibility for ensuring
7 	See also Reddy v. Catone, 2015 WL 11023213, *16 (N.D.N.Y. 2015), aff’d, 630 F. App’x 120
(2d Cir. 2015) (“[t]he plaintiff’s burden on ‘class of one’ claims is ‘extremely high,’ and a plaintiff cannot
prevail absent a prima facie showing that he is ‘identical in all relevant respects’ to the individuals with
whom he compares himself”).
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that patients received their medications while she was on duty. See Brenner v. Brenner, 821 F.
Supp. 2d 533, 538 (E.D.N.Y. 2011) (“[i]t is well-settled that in examining the sufficiency of the
Complaint, the allegations in the pleading - not the arguments advanced by counsel - control”).
Although Bell alleges that “on several occasions, patients were left without being administered
their medications and no one was prosecuted for it” (Complaint [1-1], ¶22), she offers no detail
about when this occurred or who was responsible for administering the medications or
overseeing that the medications were administered when these lapses took place. Therefore, I
recommend that this claim be dismissed.8
3. 	Fourth and Eighth Causes of Action
Since Bell fails to state an equal protection claim against the State Defendants, I
likewise conclude that she fails to establish any basis for the injunctive or declaratory relief
sought, and recommend that the Fourth and Eighth Causes of Action also be dismissed. 9
B. 	Kaleida Defendants’ Motion to Dismiss
1. 	Third Cause of Action: 42 U.S.C. §1983
The Kaleida Defendants argue that Bell “fails to plausibly allege that [they] and
the State Defendants ‘shared some common goal to violate her rights’ or that they conspired”.
Kaleida Defendants’ Memorandum of Law [9-1] at 25. Bell disagrees, arguing that the
Complaint “alleges that the Kaleida Defendants used the state-sponsored professional
8 	Alternatively, the State Defendants argue that Bell’s claims are not ripe until the disciplinary
proceeding against her has fully concluded. See State Defendants’ Memorandum of Law [7-1], Point V.
However, it is unnecessary for me to reach that argument.
9 	The State Defendants argue that to the extent the Complaint can be interpreted as asserting a First
Amendment retaliation claim, it must also be dismissed. See State Defendants’ Memorandum of Law [7-
1], Point IV. This is not contested by Bell.
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disciplinary process as a form of internal discipline of its own employees”. Bell’s Memorandum
of Law [13] at 14.
“To plead that a private party was a willful participant in joint activity with the
state, [a plaintiff] must plausibly allege that the private party and the state share some common
goal to violate the plaintiff’s rights.” Cheruvu v. HealthNow New York, Inc., 2023 WL 3443362,
*2 (2d Cir. 2023). “A plaintiff is not required to list the place and date of defendants’ meetings
and the summary of their conversations when she pleads conspiracy, but the pleadings must
present facts tending to show agreement and concerted action.” Chisolm-Mitchell v. Ahmed,
2021 WL 512460, *2 (E.D.N.Y. 2021). However, “[a] merely conclusory allegation that a
private entity acted in concert with a state actor does not suffice to state a [section] 1983 claim
against the private entity”. Cheruvu, 2023 WL 3443362 at *2.
Here, Bell offers no factual support for her conclusory allegations that
“[d]efendants acted in concert to damage” her and “confederated and agreed with each other to
selectively enforce the professional conduct rules against” her. Complaint [1-1], ¶¶ 92, 94. See
Ciambriello v. County of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (“[a] merely conclusory
allegation that a private entity acted in concert with a state actor does not suffice to state a § 1983
claim against the private entity”).
The only non-conclusory allegation against the Kaleida Defendants is that they
“falsely stated” to the State Defendants “that . . . Bell had specifically been instructed to
administer medications to certain patients”. Complaint [1-1], ¶90. However, as the Kaleida
Defendants argue, and Bell does not dispute, the alleged provision of false information
concerning Bell to the State Defendants responsible for Bell’s disciplinary proceeding, standing
alone, fails to establish the existence of a conspiracy between the Kaleida and State Defendants.
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See Cheruvu, 2023 WL 3443362 at *2 (“the law is clear that the provision of information to law-
enforcement agencies does not by itself make a private party a joint participant in state action
under section 1983”); Young v. Suffolk County, 705 F. Supp. 2d 183, 196 (E.D.N.Y. 2010)
(“[t]he provision of information to . . . police officers, even if that information is false or results
in the officers taking affirmative action, is not sufficient to constitute joint action with state
actors for purposes of § 1983”).
While the Kaleida Defendants are alleged to have “instigat[ed] charges against . . .
Bell to cover their own negligence” (Complaint [1-1], ¶93),10 “‘[a] private party does not act
under color of state law when she merely elicits but does not join in an exercise of official state
authority’”. Serbalik v. Gray, 27 F. Supp. 2d 127, 131-32 (N.D.N.Y. 1998) (quoting Auster Oil
& Gas, Inc. v. Stream, 764 F.2d 381, 388 (5th Cir.1985)). See also Dahlberg v. Becker, 748 F.2d
85, 93 (2d Cir. 1984) (“the mere invocation by defendants of New York’s legal procedures does
not constitute joint participation so as to satisfy the statutory requirement under § 1983 that there
be a state actor”); Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1208 (7th Cir. 1980)
(“[a] private person does not conspire with a state official merely by invoking an exercise of the
state official’s authority”). Bell’s Complaint lacks any non-conclusory allegations that the State
Defendants’ disciplinary action against Bell was a concerted effort between the Kaleida and
State Defendants. Therefore, I recommend that this claim be dismissed.
10 	As the Kaleida Defendants note, many of the Complaint’s allegations “refer to ‘Defendants’
collectively, without differentiating between the State Defendants and the Kaleida Defendants”. Kaleida
Defendants’ Memorandum of Law [9-1] at 24. See, e.g., Complaint [1-1], ¶¶36, 39, 42-44, 74-81, 85, 88.
This use of “group pleading” contributes to the Complaint’s failure to state a claim. See Abadi v. NYU
Langone Health System, 2024 WL 396422, *2 (S.D.N.Y. 2024) (group pleadings “are routinely rejected
by courts as insufficient to state a claim as to any particular defendant”).
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2. 	Remaining State Law Claims
Pursuant to 28 U.S.C. §1367(a), “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”. However, courts “may decline to exercise supplemental jurisdiction over a
claim” if “the district court has dismissed all claims over which it has original jurisdiction”. Id.
§1367(c)(3). “[I]n 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”. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 (1988).
“[G]iven the absence of a presently viably pled federal law claim, the interests of
judicial economy, convenience, fairness, and comity weigh in favor of not exercising
supplemental jurisdiction at this time”. See Sealy v. State University of New York at Stony
Brook, 2018 WL 3151701, *16 (E.D.N.Y.), adopted as modified, 2018 WL 1505565 (E.D.N.Y.
2018). Therefore, at this time, I recommend that the court “refrain from exercising supplemental
jurisdiction over any . . . state-law claims contained in . . . [the] Complaint”. Beazer v. New York
State Office of Mental Health, 2017 WL 3822082, *11 (E.D.N.Y.), adopted, 2017 WL 3726038
(E.D.N.Y. 2017). 11 See also Bhattacharya v. Suny Rockland Community College, 719 F. App’x
26, 28 (2d Cir. 2017) (“[w]hen a district court declines to exercise supplemental jurisdiction in a
case removed from State court, it has discretion either to dismiss the claims without prejudice or
to remand the claims”).
11 	If there is an Amended Complaint filed that includes state law claims, I encourage Bell to
consider the arguments raised by the Kaleida Defendants in their motion to dismiss (Memorandum of
Law [9-1], §§I, II) before repleading those claims.
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CONCLUSION
For these reasons, I recommend that the State and Kaleida Defendants motions to
dismiss [7, 9] be granted as detailed above and that the court refrain from exercising
supplemental jurisdiction over Bell’s state law claims unless and until a federal law claim is
adequately pled.
Unless otherwise ordered by Judge Sinatra, any objections to this Report and
Recommendation must be filed with the clerk of this court by December 11, 2024. Any requests
for extension of this deadline must be made to Judge Sinatra. A party who “fails to object timely
. . . waives any right to further judicial review of [this] decision”. Wesolek v. Canadair Ltd., 838
F. 2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474 U.S. 140, 155 (1985).
Moreover, the district judge will ordinarily refuse to consider de novo arguments,
case law and/or evidentiary material which could have been, but were not, presented to the
magistrate judge in the first instance. Patterson-Leitch Co. v. Massachusetts Municipal
Wholesale Electric Co., 840 F. 2d 985, 990-91 (1st Cir. 1988).
The parties are reminded that, pursuant to Rule 72(b) and (c) of this Court’s Local
Rules of Civil Procedure, written objections shall “specifically identify the portions of the
proposed findings and recommendations to which objection is made and the basis for each
objection . . . supported by legal authority”, and must include “a written statement either
certifying that the objections do not raise new legal/factual arguments, or identifying the new
arguments and explaining why they were not raised to the Magistrate Judge”. Failure to comply
with these provisions may result in the district judge’s refusal to consider the objections.
Dated: November 27, 2024
/s/Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
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