Mallgren v. New York State et al

Filing 13

MEMORANDUM & ORDER [DISMISSING CASE]: The Court finds that the Amended Complaint fails to cure the deficiencies in the original complaints. Accordingly, the action in docket number 14-CV-2189 is dismissed pursuant to 28 U.S.C. § 1915(e) (2)(B). In addition, Plaintiff's Affirmation fails to show cause why the Court should not issue an injunction barring him from filing future frivolous complaints seeking in forma pauperis status, without leave of the Court. Accordingly, the Court orders that (1) Plaintiff is enjoined from filing any new in forma pauperis action in the District Court for the Eastern District of New York without first obtaining leave of this Court; and (2) the Clerk of Court is direc ted to return to Plaintiff, without filing, any action that is received without an application seeking leave to file. Nothing herein shall be construed to prohibit Plaintiff from filing an appeal of this Order. However, the Court certifies pursuan t 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 an appeal. SO ORDERED by Judge Margo K. Brodie, on 10/8/2014. C/mailed to pro se Plaintiff. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------ANTHONY BRIAN MALLGREN,
Plaintiff,

MEMORANDUM & ORDER
14-CV-2189 (MKB)

v.
PAGE BURKHOLDER, NIGHAT Y. SINDHU,
GARY CLEMUK, SHARON GREENE, and
JOHN DOES,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
On August 5, 2014, the Court dismissed a series of Complaints filed by Plaintiff Anthony
Brian Mallgren, proceeding pro se, and granted him leave to file a single Amended Complaint in
the above-captioned action regarding the circumstances of his involuntary commitment in a
psychiatric facility. Plaintiff was also directed to show cause why he should not be barred from
filing future complaints seeking to proceed in forma pauperis without leave of the Court.
Plaintiff filed an “Affirmation Showing Cause,” dated August 23, 2014 which was received by
the Court on August 28, 2014. The Court received Plaintiff’s Amended Complaint, dated
September 1, 2014, on September 4, 2014.
For the reasons discussed below, Plaintiff’s Amended Complaint is dismissed and
Plaintiff is hereby enjoined from filing new actions seeking in forma pauperis status without
leave of the Court.
I.

Background
Plaintiff’s extensive litigation history is recounted in this Court’s July 25, 2014

Memorandum and Order in Mallgren v. N.Y. State Office of Atty. Gen., et al., No. 14-CV-2187,

2014 WL 3882468 (E.D.N.Y. July 25, 2014) (granting voluntary dismissal). He has filed a
number of actions in Federal District Court relating to his January 17, 2014 involuntary
commitment to South Beach Psychiatric Center, including the above-captioned action. The
Court’s August 5, 2014 Memorandum and Order in this action recounts the history of Plaintiff’s
numerous actions relating to the circumstances of Plaintiff’s involuntary commitment. See
Mallgren v. Burkholder, et al., No. 14-CV-2189, 2014 WL 3845223 (E.D.N.Y. Aug. 5, 2014)
(“August 5, 2014 Order”).
In the August 5, 2014 Order, the Court found that Plaintiff’s allegations regarding
involuntary commitment, involuntary medical treatment and the conditions of his confinement,
failed to state a plausible violation of the United States Constitution by a state actor, such that
Plaintiff would be entitled to relief under 42 U.S.C. § 1983. Furthermore, the Court found that
Plaintiff’s allegations regarding the confidentiality of his medical records failed to state a claim
under the Health Insurance Portability and Accountability Act. In light of Plaintiff’s pro se
status, the Court granted Plaintiff leave to amend his Complaint to state a § 1983 claim in the
first-filed action, No. 14-CV-2189. Plaintiff was instructed that this Complaint would
completely replace all prior Complaints, and was directed (1) to include all of the allegations he
wished to pursue relating to his involuntary commitment and treatment at South Beach
Psychiatric Center, and (2) to name individual defendants who could be held personally liable for
any alleged deprivation of his constitutional rights. Plaintiff was also ordered to show cause why
he should not be barred from filing future complaints seeking to proceed in forma pauperis
without leave of the Court.
On August 28, 2014, Plaintiff filed a one-page “Affirmation Showing Cause” with the
Court. Plaintiff states that he has “little access to legal research materials and [is] still
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substantially under the effects of poverty,” and requests that the Court “delay the injunction until
the conclusion of these cases [challenging the conditions of his involuntary commitment.]”
(Docket Entry No. 11, at 1.) He provided no additional information in response to the Court’s
order to show cause.
On September 4, 2014, the Court received Plaintiff’s Amended Complaint. The
Amended Complaint names as defendants several staff members at the South Beach Psychiatric
Center, where Plaintiff has been involuntarily committed since January 17, 2014. However, the
Amended Complaint does not include any allegations against any of the named Defendants.
The Amended Complaint first renews Plaintiff’s previously dismissed claim related to his
medical records. Plaintiff states that he was involuntarily committed to South Beach Psychiatric
Center on or around January 17, 2014. (Docket Entry No. 12 (“Amend. Compl.”), at 3.)
Plaintiff alleges that he submitted a request to review his records to Lori Abondolo in January,
2014, but that his request has not yet been fulfilled. (Id.) The Amended Complaint asks: “Is it a
violation of the due process and equal protection clauses of the Fourteenth Amendment of the
United States Constitution to not fulfill a request to review and challenge the accuracy of
materials contained within records, pursuant to New York Mental Hygiene Law § 33.16?” (Id. at
2.) In two of Plaintiff’s prior complaints, he had alleged that he had not been allowed to review
and amend information contained in his medical records. (Docket Entry No. 1 (“Compl.”), at 3;
Mallgren v. Burkholder, et al., No. 14-CV-2188, Docket Entry No. 1, at 3.) However, in another
filing, he acknowledged that the documents were delivered to him, but described them as
“seemingly insufficient/deficient.” (Mallgren v. Sindhu, No. 14-CV-2735, Docket Entry No. 1,
at 3.) Moreover, Lori Abondolo is not named as a defendant and none of the named Defendants
are alleged to have been involved in Plaintiff’s request for review of his patient records.
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The Amended Complaint’s second claim was not previously raised in any of Plaintiff’s
prior complaints. Plaintiff implies an alleged Due Process violation by asking, in the Amended
Complaint: “Is it inhumane, Youngberg v. Romeo, 457 U.S. 307 (1982), to not allow persons
that have been involuntary [sic] committed to pursue a formal education?” (Amend. Compl. at
2.) Plaintiff now alleges that his request for accommodations to allow him to pursue outside
educational opportunities has not been fulfilled. (Id. at 4.) He claims that he has been approved
for Pell grants and academic loans, he has found educational institutions with on-line coursework
and he “has inquired about purchasing a laptop for such a course.” (Id.) Plaintiff does not state
whether he submitted formal requests for access to online coursework or what response he
received. He does not identify any staff members from whom he requested assistance or who
denied his requests.
II. Discussion
a. Standard of Review
A complaint must plead “enough facts to state a claim to relief that is plausible on its
face.” 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.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Although all allegations contained in the complaint are assumed to be true, this
tenet is “inapplicable to legal conclusions.” Id. In reviewing a pro se complaint, the court must
be mindful that the Plaintiff’s pleadings should be held “to less stringent standards than formal
pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks
omitted); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly, the
court “remain[s] obligated to construe a pro se complaint liberally”). Nevertheless, the court
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must screen “a complaint in a civil action in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity” and, thereafter, “dismiss the complaint,
or any portion of the complaint,” if it is “frivolous, malicious, or fails to state a claim upon which
relief may be granted.” 28 U.S.C. § 1915A; see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.
2007). Similarly, the court is required to dismiss sua sponte an in forma pauperis action if the
court determines it “(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); Abbas, 480 F.3d at 639.
b. Possible Section 1983 Claims
Plaintiff’s vague invocation of due process and allegations regarding liberty restrictions
and other alleged deprivations of his civil rights fail to state a claim under 42 U.S.C. § 1983. In
order to sustain a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege (1) that the
challenged conduct was “committed by a person acting under color of state law,” and (2) that
such conduct “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)
(quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)). Section 1983 claims generally
must be brought against the individuals personally responsible for the alleged deprivation of
constitutional rights, not against the government entities or agencies where those individuals are
employed. Plaintiffs seeking to recover money damages “must plead that each Governmentofficial defendant, through the official’s own individual actions, has violated the Constitution.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Because Plaintiff has not alleged any claims against
any individual Defendants, to the extent he was attempting to do so, Plaintiff has failed to state a
§ 1983 claim.
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i. Involuntary Commitment
Plaintiff submits to the Court that he was “depriv[ed] of life, liberty and property without
due process of law.” He reiterates several times throughout the Amended Complaint that he was
involuntarily committed. As the Court outlined in the August 5, 2014 Order, New York State’s
Mental Hygiene Law governs the involuntary commitment of persons suffering from mental
illness. See N.Y. Mental Hyg. Law § 9. It provides a process through which a patient has the
right to contest involuntary commitment through a state court hearing, id. §§ 9.31, 9.39(a), and
provides a process through which a patient’s medical records may be sealed if the court finds that
the he was illegally detained, id. § 33.14. The Second Circuit “ha[s] held that section 9.39
facially satisfies Fourteenth Amendment due process requirements.” Olivier v. Robert L. Yeager
Mental Health Ctr., 398 F.3d 183, 188 (2d Cir. 2005) (citing Project Release v. Prevost, 722
F.2d 960, 972–74 (2d Cir.1983)); see Bryant v. Steele, --- F. Supp. 2d ---, ---, 2014 WL 2475608,
at *12 (E.D.N.Y. June 3, 2014) (“New York's overall statutory scheme governing involuntary
commitments has been held to ‘facially satisf[y] Fourteenth Amendment due process
requirements.’” (quoting Olivier, 398 F.3d at 188)).
Plaintiff failed to allege any violation of this statutory scheme that rises to constitutional
dimension — or any violation of the statutory scheme whatsoever. In light of the fact that
Plaintiff has not alleged any violation of this law, or submitted any further detail about his
involuntary commitment, Plaintiff has failed to state a claim upon which relief can be granted.
ii. Educational Opportunities
Plaintiff suggests that he is subjected to inhumane conditions of confinement because his
requests for “accommodations to pursue a formal education while involuntary [sic] committed”
were unfulfilled. Persons who are subject to civil commitment in mental health facilities are
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protected from inhumane conditions of confinement by the Due Process Clause of the Fourteenth
Amendment. Youngberg v. Romeo, 457 U.S. 307, 321–22 (1982) (“Persons who have been
involuntarily committed are entitled to more considerate treatment and conditions of
confinement than criminals whose conditions of confinement are designed to punish.”); Caiozzo
v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009) (“Claims for deliberate indifference to a serious
medical condition or other serious threat to the health or safety of a person in custody should be
analyzed under the same standard irrespective of whether they are brought under the Eighth or
Fourteenth Amendment.”); Groves v. Davis, No. 11-CV-1317, 2012 WL 651919, at *3
(N.D.N.Y. Feb. 28, 2012) (applying the Eighth Amendment standard to the Fourteenth
Amendment claims of a plaintiff subject to involuntary civil commitment in a mental health
facility). A claim for inhumane conditions of confinement may assert a constitutional
deprivation where it alleges “unquestioned and serious deprivations of basic human needs” or
denial of “the minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S.
337, 347 (1981). Prisoners and detainees have constitutionally protected rights to receive
adequate food, clothing, shelter, medical care, and security. Farmer v. Brennan, 511 U.S. 825,
832 (1994). However, “Plaintiffs have no eighth amendment right to . . . educational activities.”
Griffin v. Coughlin, 742 F. Supp. 1006, 1017 (N.D.N.Y. 1990) (citing Rhodes, 452 U.S. at 348;
Peterkin v. Jeffes, 855 F.2d 1021, 1029–30 (3d Cir. 1988)).
Plaintiff has not established any constitutional right to pursue educational opportunities
during his involuntary commitment. Plaintiff has not alleged that the ability to seek “formal
education” or access a laptop are among the constitutionally protected rights guaranteed by the
Eighth or Fourteenth Amendments. As he has failed to allege a “serious deprivation of basic

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human needs” that would suggest a violation of his constitutional rights, see Rhodes, 452 U.S. at
347, this claim is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
c. Medical records
Plaintiff suggests that his Fourteenth Amendment rights were violated because his
request to review and challenge the accuracy of his medical records was not fulfilled. Plaintiff
has not identified any constitutional right to inspect or challenge his medical records. As the
Court previously explained in its August 5, 2014 Order, a federal law, the Health Insurance
Portability and Accountability Act (“HIPAA”) established standards and promulgated
regulations designed to protect the privacy and accuracy of individually identifiable health
information. 42 U.S.C. §§ 1320d - 1320d-8. These regulations provide a process by which
individuals may request amendments to the content of their records and establish procedures for
accepting or denying the requested amendment. 45 C.F.R. § 164.526(b)-(d). As stated in the
August 5, 2014 Order, HIPAA regulations are enforceable by the Secretary of Health and Human
Services, and they do not provide a private cause of action through which individuals can enforce
its provisions. 42 U.S.C. § 1320d-6(a)(2); Wilkerson v. Shinseki, 606 F.3d 1256, 1267 (10th Cir.
2010); Warren Pearl Const. Corp. v. Guardian Life Ins. Co. of Am., 639 F. Supp. 2d 371, 377
(S.D.N.Y. 2009) (collecting cases). Accordingly, the Court finds that the Amended Complaint
fails to state a claim under federal law related to Plaintiff’s medical records. 28 U.S.C.
§ 1915(e)(2)(B)(ii).
Plaintiff is not without recourse. He may use the HIPAA procedures provided in 45
C.F.R. § 164.526(b)-(d) to request review and amendments to his medical records. Moreover,
New York’s Mental Hygiene Law § 33.16 gives patients the right, on written request and with
certain limitations, to inspect their own clinical records in the possession of mental health
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facilities and permits an individual to review and challenge the accuracy of materials contained
in his records. N.Y. Mental Hyg. Law § 33.16(b), (c), and (g). The Amended Complaint does
not indicate what records Plaintiff requested, whether he followed the provided procedures for
requesting review of the records, or whether he challenged the accuracy of the information
contained in his clinical record.
III. Filing Injunction
The Court’s August 5, 2014 Order directed Plaintiff to show cause why he should not be
barred from filing future complaints seeking in forma pauperis status without leave of the Court.
As recounted therein, Plaintiff has filed at least 24 cases in this Court since January 23, 2013,
along with numerous cases in other district courts. Of the cases filed in this Court, 19 were
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) or for lack of subject matter jurisdiction. By
Orders dated May 2, 2013, in Mallgren v. Motion Recruitment Partners Inc., et al., No. 13-CV1054, Mallgren v. John Doe Corp., No. 13-CV-1265, and Mallgren v. Bloomberg, et al., No. 13CV-1466; by Order dated March 11, 2014 in Mallgren v. Am. Psychiatric Ass’n, et al., No. 14CV-2211, 2014 WL 978457 (E.D.N.Y. Mar. 11, 2014); and by Order dated July 25, 2014 in
Mallgren v. N.Y. State Office of Atty. Gen., et al., No. 14-CV-2187, 2014 WL 3882468
(E.D.N.Y. July 25, 2014), Plaintiff was warned that the future filing of vexatious and frivolous
litigation may result in sanctions, including the imposition of an injunction prohibiting him from
making future filings seeking in forma pauperis status without leave of the Court. The Court
again issued this warning in its August 5, 2014 Order.
Plaintiff’s “Affirmation Showing Cause” states that “In question in this latest string of
cases is the constitutionality of involuntarily confining an individual for a total of over nine
months, both the due process prospect and the conditions of confinement.” (Docket Entry No.
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11, at 1) Plaintiff requests that the Court “delay the injunction until the conclusion of these
cases, effectively giving Anthony Brian Mallgren another chance to properly address the court in
these and future cases.” (Id.) The Affirmation does not, however, offer any valid reason why
Plaintiff should not be barred from filing future in forma pauperis complaints. Plaintiff’s prior
complaints related to his involuntary confinement and the conditions of his confinement were
dismissed because they failed to state a claim for relief. Plaintiff has been given ample
opportunity to demonstrate that his confinement in a mental health facility violated due process
or that he was subjected to inhumane conditions of confinement. When prompted, Plaintiff
moved to discontinue his claims that he had not been given the constitutionally required process
for involuntary commitment. Moreover, Plaintiff’s sole remaining argument related to the
conditions of his confinement alleged that he did not have access to a “formal education”
through online coursework, a privilege that he has not demonstrated to be part of the
constitutionally protected “basic human needs” of prisoners or detainees.
The Court finds that Plaintiff’s frequent frivolous filings detract from the legitimate cases
before the Court. “The district courts have the power and the obligation to protect the public and
the efficient administration of justice from individuals who have a history of litigation entailing
vexation, harassment and needless expense to other parties and an unnecessary burden on the
courts and their supporting personnel.” Lau v. Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000)
(internal quotations and citations omitted). “If a litigant has a history of filing vexatious,
harassing or duplicative lawsuits, courts may impose sanctions, including restrictions on future
access to the judicial system.” Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005) (internal
quotations and citations omitted). Plaintiff has demonstrated such a history and the Court

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therefore imposes this injunction preventing Plaintiff from filing any further action without
seeking leave of the Court.
IV. Conclusion
The Court finds that the Amended Complaint fails to cure the deficiencies in the original
complaints. Accordingly, the action in docket number 14-CV-2189 is dismissed pursuant to
28 U.S.C. § 1915(e)(2)(B).
In addition, Plaintiff’s Affirmation fails to show cause why the Court should not issue an
injunction barring him from filing future frivolous complaints seeking in forma pauperis status,
without leave of the Court. Accordingly, the Court orders that (1) Plaintiff is enjoined from
filing any new in forma pauperis action in the District Court for the Eastern District of New
York without first obtaining leave of this Court; and (2) the Clerk of Court is directed to return to
Plaintiff, without filing, any action that is received without an application seeking leave to file.
28 U.S.C. § 1651.
Nothing herein shall be construed to prohibit Plaintiff from filing an appeal of this Order.
However, 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 an appeal.
Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
SO ORDERED:

s/ MKB
MARGO K. BRODIE
United States District Judge

Dated: October 8, 2014
Brooklyn, New York

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