Mendelsohn v. D'Souza et al
ORDER granting 21 Motion to Dismiss for Lack of Jurisdiction and dismissing Plaintiff's complaint in its entirety with prejudice pursuant to 28 U.S.C. Section 1915(e). See attached memorandum of decision. The clerk is directed to close the file. Signed by Judge Vanessa L. Bryant on 7/25/2012. (Fernandez, Melissa)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DEEPAK CYRIL D’SOUZA and
CIVIL ACTION NO.:
3:11 CV1514 (VLB)
JULY 25, 2012
MEMORANDUM OF DECISION GRANTING DEFENDANTS’ MOTION TO DISMISS
[Dkt. #21] AND DISMISSING PLAINTIFF’S COMPLAINT
Plaintiff Lawrence J. Mendelsohn (“Mendelsohn”), proceeding pro se,
brings this action against Defendants Deepak Cyril D’Souza, MD (“D’Souza”) and
John Krystal, MD (“Krystal”) alleging that the Defendants deprived him of his
right of reproduction, that his location of residence is mandated and that he
received humiliating and degrading medical treatment. Before the Court is
Defendants’ motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (1) for failure to
exhaust administrative remedies under the Federal Tort Claims Act (“FTCA”), 28
U.S.C. § 2679(b)(1). In addition, the Court has reviewed Plaintiff’s complaint
pursuant to 28 U.S.C. § 1915 (e)(2) which empowers the Court to sua sponte
dismiss an action filed by a pro se plaintiff proceeding in forma pauperis if the
action is frivolous or malicious, fails to state a claim on which relief may be
granted or seeks monetary relief against a defendant who is immune from such
relief. For the reasons stated hereafter, the Court grants Defendants’ motion to
dismiss and dismisses Plaintiff’s complaint in its entirety as frivolous.
The allegations in Plaintiff’s complaint appear to all stem from the
psychiatric treatment Plaintiff received at the Mental Health Clinic in the VA
Connecticut Healthcare System in West Haven, Connecticut over a 29 year
period. Plaintiff has named as Defendants two psychiatrists who are federal
government employees of the VA Connecticut Healthcare System and who are
also associated with Yale University’s School of Medicine (also referred to as
“Yale Psychiatry School” or “YPS”). Plaintiff’s allegations are largely confused,
incoherent and rambling. The Court liberally construes the allegations in
Plaintiff’s complaint to broadly assert three causes of action. The first cause of
action sounding in tort and the last two causes of action for deprivation of
constitutional rights brought under Bivens.1
Plaintiff’s first claim appears to allege a claim sounding in tort against
Defendants. Plaintiff alleges that his “Claim I” is that “[w]hile under the medical
control of the YSP [Yale Psychiatry School] system of ‘treatment,’ I have found
the experience humiliating and degrading” and Dr. D’Souza continues that
behavior currently.” [Dkt. # 1, Compl. at p.3]. Plaintiff alleges that he has been
“administered powerful and debilitating psychotropic experimental drugs whose
long-term genetic effects have yet to be determined.” [Id.]. He further alleges
that “my genetic validity has been substantiated and established by my
voluminous body of artistic products, yet the YSP still maintains me in a
In Bivens, the Supreme Court held that an individual may recover damages from
a federal agent or employee acting under color of federal authority if that agent or
employee violates the individual’s constitutional rights. Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
condition of societal isolation and material deprival,” and that his
“communications and utterances are monitored and mandated daily” and
“structuring” has been imposed on him. [Id.]. Plaintiff complains that his
“location of residence is mandated and any aspirations to re-locate are
disapproved of.” [Id.]. Plaintiff contends that “instead of owning my own home
containing my own family, I am forced to live in a communal psychiatric ‘half-way
house’ with other deprived individuals controlled by minions” of the Yale School
of Psychiatry. [Id. at 4]. Plaintiff also claims that Defendants have violated
C.G.S.A. § 22A-53 cruelty to persons with their actions and that he has been
“persecuted for [his] personal and political opinions and philosophies.” [Id. at 2,
Plaintiff’s other allegations can be construed to assert a second claim for
violation of his substantive due process rights with respect to his constitutional
right of reproduction. Plaintiff alleges that his “Claim II” is that “my
constitutionally guaranteed ‘right of reproduction’ have been denied by Cyril
D’Souza, MD and the practices and procedures of the Yale School of Psychiatry.”
[Id. at 3]. Plaintiff alleges that the YPS is practicing eugenics and that he has
been “held in a condition of abstinence and celibacy for the last 29 years by the
practices and procedures of the Yale School of Psychiatry, a practice which
borders on ‘eugenics’.” [Id.]. Plaintiff further alleges that “for the past 29 years,
the ‘American dream’ has been impossibility to me because John Crystal, MD and
the [Yale School of Psychiatry] have determined that ‘something is wrong with
me.’” [Id. at 4]. Plaintiff reiterates that his “constitutionally guaranteed rights of
reproduction have been impinged upon…by the minions of the Yale School of
Psychiatry’s system of control, deprival, and confinement” for the past 29 years
of his life. [Id.].
Lastly, Plaintiff’s allegations can be liberally construed to assert a third
claim for false arrest or imprisonment. For example, Plaintiff alleges that his
“location of residence is mandated and any aspirations to re-locate are
disapproved of” and that he was forced to live in a psychiatric halfway house. [Id.
Plaintiff also indicates in his complaint that he has complained in the past
about Defendants to the Connecticut Dept. of Public Health. [Dkt. #1, Compl. at
2]. Plaintiff has attached to his complaint two letters which he wrote to the
Connecticut Dept. of Public Heath regarding Defendant D’Souza. [Id. at 8-14].
Also attached is a letter to Plaintiff from the Connecticut Dept. of Public Health
informing him that the Department has received his complaint. [Id. at 21].
In addition, Plaintiff has attached to his complaint his resume, a newspaper
article detailing the death of his former house-mate, and a November 3, 2008
newspaper ad in which the Police ask for the public’s help to track down the
Plaintiff who went missing and was in need of medication. [Id. at 15-17, 19].
Plaintiff has also attached two letters in which Plaintiff seeks to terminate his
psychiatric treatment with and complains about Defendant D’Souza. [Id. at 18,
Plaintiff requests $1,000,000 in damages for “humiliation, deprival and
degradation over the last 29 years including permanent societal stigma for having
used [Yale School of Psychiatry’s] services.” [Id. at 5]. Plaintiff also requests
$4,000,000 for the denial of his reproductive rights. [Id.].
Under 28 U.S.C. § 1915 (e)(2), the Court is expressly mandated to dismiss
sua sponte an action filed by a pro se plaintiff proceeding in forma pauperis if the
Court determines that the action is frivolous or malicious, fails to state a claim on
which relief may be granted, or seeks monetary relief against a defendant who is
immune from such relief. See 28 U.S.C. § 1915 (e)(2). “An action is frivolous if it
lacks an arguable basis in law or fact — i.e., where it is ‘based on an indisputably
meritless legal theory’ or presents ‘factual contentions [which] are clearly
baseless.’” Scanlon v. Vermont, 423 Fed. Appx. 78, 79 (2d Cir. 2011) (citing
Nietzke v. Williams, 490 U.S. 319, 327 (1989)). Rule 12(b)(6) sets for the standard
for failure to state a claim.
The standards of review for a motion to dismiss under Rule 12(b)(1) for lack
of subject matter jurisdiction and under 12(b)(6) for failure to state a claim are
“substantively identical.” Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d. Cir.
2003). However, on a motion to dismiss under Rule 12(b)(1), the party invoking
the Court’s jurisdiction bears the burden of proof to demonstrate that subject
matter jurisdiction exists, whereas the movant bears the burden of proof on a
motion to dismiss under Rule 12(b)(6). Id. In deciding both types of motions, the
Court “must accept all factual allegations in the complaint as true, and draw
inferences from those allegations in the light most favorable to the plaintiff.” In
re AIG Advisor Group Sec. Litig., 309 Fed. App’x. 495, 497 (2d Cir. 2009). “To
survive a motion to dismiss [under Rule 12(b)(6)], 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, 129 S. Ct. 1937, 1949 (2009) (internal
quotation marks omitted). “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.
The Court’s review on a motion to dismiss pursuant to Rule 12(b)(6) is
generally limited to “the facts as asserted within the four corners of the
complaint, the documents attached to the complaint as exhibits, and any
documents incorporated in the complaint by reference.” McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). In addition, the Court may also
consider “matters of which judicial notice may be taken” and “documents either
in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in
bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). In
deciding a motion to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), however, the Court “may resolve disputed factual issues by reference to
evidence outside the pleadings, including affidavits.” State Employees
Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007).
First Cause of Action – Tort
Although not coherently alleged, it appears that Plaintiff’s first claim
sounds in tort law. Plaintiff alleges that he suffered “humiliation, deprival and
degradation” and also cites Conn. Gen. Stat. § 53-202 a Connecticut criminal
statute regarding cruelty to persons. [Dkt #1, Compl. at p. 6]. Defendants have
filed a motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter
jurisdiction on the basis that since the Defendants were acting in their capacity
as federal employees Plaintiff’s tort claim is really a claim against the United
States that must be brought under the FTCA and subject to the FTCA’s
administrative exhaustion requirement.
The FTCA requires that a claimant exhaust all administrative remedies
before filing an action in federal court. Celestine v. Mount Vernon Neighborhood
Heath Ctr., 403 F. 3d 76, 82 (2d Cir. 2005). This administrative exhaustion
requirement is jurisdictional. Id. If the claimant does not exhaust his/her
administrative remedies, a federal court will not have subject matter jurisdiction
over the action. To survive a Rule 12(b)(1) motion, Plaintiff must prove by a
preponderance of the evidence that the Court has subject matter jurisdiction over
his claim. Lunney v. United States, 319 F. 3d 550, 554 (2d Cir. 2003). Here
Plaintiff has failed to even allege that he has exhausted his administrative
remedies. Furthermore, Defendants assert that the “VA Connecticut has no
record of the filing of any tort claim in connection with this matter.” Id.
Consequently, Plaintiff has failed to prove by a preponderance of the evidence
that the Court has subject matter jurisdiction. The Court therefore grants
Plaintiff erroneously cited Conn. Gen. Stat. §22A-53 which is a statute relating to
pesticide control in his complaint instead of Con. Gen. Stat. §53-20 which is the
correct citation to the Connecticut criminal statute regarding cruelty to persons.
Defendants’ motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter
To the extent that Plaintiff is asserting a cause of action in tort against
Defendants outside the scope of their federal employment, the Court would also
lack subject matter jurisdiction over those claims as there would be no diversity
jurisdiction. See 28 U.S.C. § 1332(a). Plaintiff alleges that he is a citizen of
Connecticut as are both Defendants. Since the action is not between citizens of
different states, the Court would lack subject matter jurisdiction over Plaintiff’s
state law tort claims against Defendants outside the scope of their federal
Lastly, Plaintiff may not bring a claim for violation of Conn. Gen. Stat. § 5320 as there is no private right of action to enforce this criminal statute. In
Provencher v. Town of Enfield, the Connecticut Supreme Court explained that
“there exists a presumption in Connecticut that private enforcement does not
exist unless expressly provided in a statute. In order to overcome that
presumption, the plaintiff bears the burden of demonstrating that such an action
is created implicitly in the statute.” Provencher v. Town of Enfield, 936 A. 2d 625,
629 (Conn. 2007). Here the language of § 53-20 does not provide for a private
right of action and there is no indication that such a right was implicitly created in
In sum, to the extent that the Defendants engaged in the alleged
misconduct while acting in their capacity as federal employees, the Court lacks
subject matter jurisdiction over the claim because Plaintiff has failed to exhaust
his administrative remedies as required by the FTCA. To the extent that the
Defendants engaged in the alleged misconduct outside the scope of their federal
employment, the Court lacks subject matter jurisdiction due to lack of diversity
between the parties. Lastly, Conn. Gen. Stat. § 53-20 does not provide a private
right of action. Therefore Plaintiff’s first cause of action is dismissed in its
Second Cause of Action – Right of Reproduction
The Court construes Plaintiff’s allegations to assert a Bivens claim that
Defendants violated substantive due process by depriving him of his
constitutional right of reproduction. “Substantive due process protects only
those interests that are ‘implicit in the concept of ordered liberty.’” Local 342 v.
Town Bd. of Huntington, 31 F.3d 1191, 1196 (2d Cir.1994) (quoting Palko v.
Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 151, 82 L.Ed. 288 (1937)). “In order to
state a valid claim for violation of substantive due process, [plaintiff] must show
that [defendant's action] was an ‘exercise of power without any reasonable
justification in the service of a legitimate governmental objective [ .]’” SeaAir NY.
Inc. v. City of N.Y., 250 F.3d 183, 187 (2d Cir.2001) (quoting County of Sacramento
v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). “Substantive
due process protects against government action that is arbitrary, conscienceshocking, or oppressive in a constitutional sense, but not against government
action that is incorrect or ill-advised.” Cunney v. Bd. of Trustee of Village 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)). “It does not forbid governmental
actions that might fairly be deemed arbitrary or capricious and for that reason
correctable in a state court lawsuit seeking review of administrative action.
Substantive 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).
“In analyzing plaintiff's substantive due process claim, the Court must ‘first
inquire whether a constitutionally cognizable … interest is at stake.’” Gipson v.
Hempstead Union Free School Dist., No.09-cv-5466(SJF)(GRB), 2012 WL 1032627,
at *3 (E.D.N.Y. Mar. 26, 2012) (quoting Ferran v. Town of Nassau, 471 F.3d 363, 369
(2d Cir.2006)). “Next, plaintiff must allege ‘governmental conduct that is so
egregious, so outrageous, that it may fairly be said to shock the contemporary
conscience.’” Id. (quoting Velez v. Levy, 401 F.3d 75, 93 (2d Cir.2005)).
It is well established that “protections of substantive due process have for
the most part been accorded to matters relating to marriage, family, procreation,
and the right to bodily integrity.” Albright v. Oliver, 510 U.S. 266, 272 (1994).
However, Plaintiff has failed to allege facts plausibly demonstrating that the
alleged governmental conduct is egregious or shocking to the conscience.
Indeed, Plaintiff’s allegations as to Defendants’ alleged practice of “eugenics” are
clearly baseless and frivolous. The Second Circuit has explained that “[w]here
the factual allegations supporting a claim describe fantastic or ‘delusional
scenarios,’ the claims are properly dismissed as ‘clearly baseless’” pursuant to
Section 1915(e). Abascal v. Jarkos, 357 Fed. Appx. 388, 390 (2d Cir. 2009)
(quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)). In the present case,
Plaintiff’s allegations that he has been “held in a condition of abstinence and
celibacy for the last 29 years by the practices and procedures of the Yale School
of Psychiatry,” that he has been given “powerful and debilitating psychotropic
experimental drugs whose long-term genetic effects have yet to be determined,”
and that the Yale School of Psychiatry is practicing eugenics describe fantastic
or delusional scenarios that are properly dismissed as clearly baseless. The
Court therefore dismisses, sua sponte, Plaintiff’s reproductive rights due process
claim pursuant to 28 U.S.C. § 1915(e).
Third Cause of Action – False Arrest or Imprisonment
Lastly, the Court liberally construes Plaintiff’s allegations to assert a
Bivens claim for false arrest or imprisonment. In analyzing claims alleging the
constitutional torts of false arrest or false imprisonment, courts “generally look[ ]
to the law of the state in which the arrest occurred.” Davis v. Rodriguez, 364 F.3d
424, 433 (2d Cir.2004). Connecticut treats the torts of false arrest and false
imprisonment identically. See Green v. Donroe, 186 Conn. 265, 267 (1982). The
Connecticut common law tort of false arrest or imprisonment “is the unlawful
restraint by one person of the physical liberty of another ... Any period of such
restraint, however brief in duration, is sufficient to constitute a basis for liability
... To prevail on a claim of false imprisonment, the plaintiff must prove that his
physical liberty has been restrained by the defendant and that the restraint was
against his will, that is, that he did not consent to the restraint or acquiesce in it
willingly.” Berry v. Loiseau, 223 Conn. 786, 820 (1992) (internal quotation marks
and citations omitted).
Plaintiff’s allegations that his “location of residence is mandated and any
aspirations to re-locate are disapproved of,” that he was forced to live in a
psychiatric halfway house, and that his “communications and utterances are
monitored and mandated daily” again describe fantastic or delusional scenarios
that are properly dismissed as clearly baseless. In addition, Plaintiff has failed to
allege facts which plausibly demonstrate that the alleged restraint of his physical
liberty was unlawful. The Court notes that Conn. Gen. Stat. §17a-502 provides
that “any person who a physician concludes has psychiatric disabilities and is
dangerous to himself or others or gravely disabled, and is in need of immediate
care and treatment in a hospital for psychiatric disabilities, may be confined in
such a hospital, either public or private, under an emergency certificate.” Conn.
Gen. Stat. §17a-502. Consequently, the Court dismisses, sua sponte, Plaintiff’s
false arrest or imprisonment claim pursuant to 28 U.S.C. § 1915(e).
For all the foregoing reasons, the Court grants Defendants’ motion to
dismiss [Dkt. #21] and dismisses Plaintiff’s complaint in its entirety with
prejudice. The Clerk is directed to close the file.
IT IS SO ORDERED.
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: July 25, 2012
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