Anghel v. New York State Department of Health et al
Filing
49
MEMORANDUM OF DECISION AND ORDER - It is hereby ORDERED, that the motion to dismiss the amended complaint by DOH and the Senior State Official Defendants is granted and the complaint is dismissed as to them with prejudice; and it is further; ORDERED , that the motion to dismiss the amended complaint by the Individual Defendants is granted and the complaint is dismissed as to them with prejudice; and it is further; ORDERED, that the motion to dismiss the amended complaint by the United Defendants is granted and the complaint is dismissed as to them with prejudice; and it is further; ORDERED, that the Clerk of the Court is respectfully directed to mark the case as closed. Ordered by Judge Arthur D. Spatt on 5/29/2013. (Coleman, Laurie)
FILED
CLERK
5/29/2013 1:53 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
DR. MARIA-LUCIA ANGHEL,
Plaintiff,
MEMORANDUM OF
DECISION AND ORDER
2:12-CV-03484 (ADS)(WDW)
-againstNEW YORK STATE DEPARTMENT OF
HEALTH, CLAUDIA MORALES BLOCH,
individually and in her official capacity,
KATHRYN LEONE, individually and in her
official capacity, HAROLD ROSENTHAL,
individually and in his official capacity,
LABORATORY INVESTIGATIVE
UNIT:WADSWORTH CENTER, EILEEN
HEAPHY, individually and in her official
capacity, COLLEEN FLOOD, individually and
in her official capacity MICHAEL WEINSTEIN,
individually and in his official capacity,
STEPHAN PETRANKER, M.D., individually
and in his official capacity, OFFICE OF
PROFESSIONAL MISCONDUCT, KEITH
SERVIS, individually and in his official
capacity, ROY NEMERSON, individually and in
his official capacity, NIRAV SHAH, M.D.
individually and in his official capacity,
ANDREW CUOMO, ERIC T.
SCHNEIDERMAN, individually and in his
official capacity, UNITED HEALTHCARE,
MICHAEL STEPHANO, individually and as an
employee of United Healthcare, THE BOARD
OF PROFESSIONAL MEDICAL CONDUCT,
Defendants.
---------------------------------------------------------X
APPEARANCES:
Law Office of Jonathan Bell
Attorneys for the Plaintiff
30 Jericho Executive Plaza 100e
Jericho, NY 11753
By: Jonathan Bell, Esq., Of Counsel
1
Law Offices of Joseph F. Kilada
Attorneys for the Plaintiff
1 Old Country Road
Suite 347
Carle Place, NY 11514
By: Joseph F. Kilada
Eric T. Schneiderman, Attorney General of the State of New York
Attorneys for the Defendants New York State Department of Health, Claudia Morales Bloch,
Kathryn Leone, Harold Rosenthal, Laboratory Investigative Unit: Wadsworth, Eileen Heaphy,
Colleen Flood, Michael Weinstein, Stephan Petranker, MD., Office Of Professional Medical
Conduct, Keith Servis, Roy Nemerson, Nirav Shah, MD., Andrew Cuomo, Eric T. Schneiderman,
The Board of Professional Medical Conduct
200 Old County Road, Suite 240
Mineola, NY 11501
By: Ralph Pernick, Assistant Attorney General
Robinson & Cole, L.L.P.
Attorneys for the Defendants United HealthCare and Michael Stephano
Financial Centre
P.O. Box 10305
Stamford, CT 06904-2305
By: Joseph Lawrence Clasen, Esq., Of Counsel
Robinson & Cole
Attorneys for the Defendant United HealthCare
280 Trumbull Street
Hartford, CT 06103
By: Laura Torchio, Esq., Of Counsel
SPATT, District Judge.
On July 13, 2012, the plaintiff Dr. Maria-Lucia Anghel filed this action against various
New York State entities, senior state officials, and United HealthCare. The complaint asserts
numerous causes of action, including violations of due process and equal protection, fraud, and
conversion. Presently pending before the Court are three motions: (1) a motion by the
defendants the New York State Department of Health, Governor Andrew Cuomo, Attorney
General Eric T. Schneiderman, and related parties to dismiss the amended complaint as against
them pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure (Fed. R. Civ. P.) for lack
2
of subject matter jurisdiction; and pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim
upon which relief can be granted; (2) a motion by several individual defendants, most of whom
are DOH employees, to dismiss the amended complaint as against one of them pursuant to Fed.
R. Civ. P. 12(b)(5) for insufficient service of process and as against all of them pursuant to
Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted; and (3) a
motion by defendants United HealthCare and one of its employees to dismiss the amended
complaint as against them pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon
which relief can be granted.
I. BACKGROUND
A. Factual Background
Before delving into the facts of this case, the Court will describe the procedural process
in New York State for investigation of professional misconduct by physicians. The Department
of Health Office of Professional Medical Conduct (OPMC) initially conducts investigations and
makes the decision to bring disciplinary proceedings. Once charges are brought, OPMC’s role is
over. At that point, the matter is turned over to the Bureau of Professional Medical Conduct
(BPMC), a bureau within the Division of Legal Affairs of the Department of Health. Bureau
attorneys prepare charges and prosecute those charges before an Administrative Law Judge
(ALJ) and Hearing Committee of the Board of Professional Medical Conduct. The ALJ is not
entitled to vote. See Public Health Law § 230(10)(e). If any of the charges are sustained by the
Hearing Committee, it imposes a penalty. See Id. § 230 (10) (i). The physician may then seek
administrative review or commence litigation pursuant to Article 78 of the Civil Practice Law
and Rules (CPLR).
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Relevant here, the Plaintiff is a physician board-certified in anesthesiology and pain
management and licensed to practice medicine in New York. On or about April 16, 2008, the
Plaintiff was charged by the BPMC with 25 specifications of professional misconduct; including
fraudulent practice; negligence on more than one occasion; incompetence on more than one
occasion; gross negligence; willful failure to comply with federal law and regulations; excessive
tests and treatment; and failure to maintain records. The charges related to the Plaintiff’s
treatment of seven patients and her operation of a laboratory at her offices. The ALJ and the
Hearing Committee conducted a hearing over the course of 19 days. At the hearing, the Plaintiff
was represented by an attorney and had the opportunity to present testimony and evidence. On
July 15, 2009, following the hearing, the Hearing Committee sustained each specification except
for the charge of incompetence. The Hearing Committee revoked the Plaintiff's license to
practice medicine in New York and imposed a $240,000 fine.
The Plaintiff subsequently challenged the revocation and fine by bringing a CPLR Article
78 proceeding in the Appellate Division, Third Department. The Appellate Division issued a
detailed decision in July 2011, dismissing the petition. See Matter of Anghel v. Daines, 86
A.D.3d 869, 927 N.Y.S.2d 710 (3d Dept 2011). The Appellate Division determined that:
(1) the Plaintiff’s assertions that various evidentiary and procedural errors deprived her of her
right to a fair hearing and due process were without merit; (2) substantial evidence supported the
Committee’s decision to sustain the specification alleging that the Plaintiff willfully failed to
comply with federal law and regulations governing the practice of medicine; (3) the ample record
supported the Committee’s findings of fraudulent practice and excessive tests; (4) substantial
evidence supported the Committee’s finding of a failure to maintain adequate medical records;
and (5) there was no reason to disturb the Committee’s finding that the Plaintiff was
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“intentionally deceitful” and wholly lacking credibility. The Plaintiff’s motion for leave to
appeal to the New York Court of Appeals was denied.
B. Procedural History
On July 13, 2012, the Plaintiff filed this action against Department of Health and three of
its subdivisions, namely the Laboratory Investigative Unit: Wadsworth Center (LIU), the Office
of Professional Misconduct (OPMC), and the BPMC (collectively DOH); the Commissioner of
DOH Nirav Shah, MD.; Governor Cuomo; and Attorney General Schneiderman (collectively the
Senior State Officials); Claudia Morales Bloch, Kathryn Leone, Harold Rosenthal, Eileen
Heaphy, Colleen Flood, Michael Weinstein, Stephan Petranker, MD., Keith Servis, and Roy
Nemerson (collectively the Individual Defendants); and United HealthCare and one of its
employees, Michael Stephano (the United Defendants). The gravamen of the Plaintiff’s
allegations is that her medical license was wrongfully and unconstitutionally revoked.
On August 23, 2012, the Plaintiff filed a 78-page, 525-paragraph amended complaint
against all the Defendants. According to the amended complaint, which is rambling and
indecipherable in parts, Bloch acted as the associate counsel for the OPMC and investigated,
administered, and prosecuted the charges brought against the Plaintiff. (Am. Compl. ¶ 6.)
Leone acted as the Assistant Attorney General in 2009 and represented DOH in the
Article 78 proceeding. (Id. ¶ 7.)
Rosenthal was an attorney within the DOH Bureau of Litigation. (Id. ¶ 8.)
Heaphy was the Senior Investigator for LIU who investigated the Plaintiff’s office and
testified as a fact witness at the administrative hearing (Id. ¶ 10.).
Flood was the director of the Physician Office Laboratory Evaluation Program (POLEP),
which reviews physician-owned laboratories pursuant to a federal grant (Id. ¶ 11.).
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Weinstein was a LIU attorney who issued a subpoena for laboratory records from the
Plaintiff’s office (Id. ¶ 12). .
Petranker is a physician who testified as an expert witness at the administrative hearing
on behalf of the DOH (Id. ¶ 13.)
Servis was the Director of the OPMC and had the responsibility of choosing those cases
to be presented to an investigation committee (Id. ¶ 15).
Nemerson was Deputy Counsel of the Bureau of Litigation and Bloch’s supervisor (Id. ¶
16).
The Plaintiff also alleges that (1) the United Defendants wrongly reported the Plaintiff to
POLEP for improper billing practices; (2) Stephano created a compact disk (CD) with
manipulable, false data regarding the Plaintiff’s billing; and (3) Stephano made false
misrepresentations under oath and in his affidavit during the administrative hearing.
The Plaintiff interposed thirteen causes of action against the varying parties sounding in
(1) unreasonable search and seizure; (2) abuse of process; (3) first amendment retaliation; (4)
perjury; (5) subornation; (6) fraud upon a court; (7) state law trespass; (8) fraud pursuant to Fed.
R. Civ. P. 9(b) and CPLR 3016; (9) due process and equal protection violations in violation of 42
U.S.C. § 1983; (10) substantive due process; (11) stigma-plus; (12) interference with her rights
in violation of 42 U.S.C. § 1985; and (13) state law conversion. The Plaintiff also seeks a
declaratory judgment rendering null and void BPMC’s revocation order. Finally, the Plaintiff
also sought a preliminary injunction and temporary restraining order (“TRO”), essentially
requesting the reinstatement of her medical license. The Court previously denied the motion for
a preliminary injunction and a TRO.
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DOH and the Senior Official Defendants then moved to dismiss the amended complaint
for lack of subject matter jurisdiction and failure to state a claim upon which relief can be
granted. The Individual Defendants moved to dismiss the amended complaint as against Heaphy
for insufficient service of process and as against all of them for failure to state a claim upon
which relief can be granted. Lastly, the United Defendants moved to dismiss the amended
complaint for failure to state a claim upon which relief can be granted. The Plaintiff filed
separate oppositions papers as to each motion, all of which the Defendants contend violate the
Court’s individual rule IV(b)(i) because the Plaintiff’s memoranda of law, including the Table of
Contents and Table of Authorities, exceeds 25 pages. However, because this 25-page limit does
not include the Table of Contents and Table of Authorities, the Court finds that the Plaintiff’s
Opposition to the Individual Defendants’ Motion to Dismiss and the United Defendants Motion
to Dismiss complies with this Court’s individual rules. While the Court finds that Plaintiff’s
Opposition to the State Entity and Senior State Official Defendants exceeds the aforementioned
25-page limit, the Court has discretion to consider documents filed in violation of procedural
rules.” Church & Dwight Co. v. Kaloti Enters. of Mich., L.L.C., 07 Civ. 0612 (BMC), 2011 WL
4529605, at *1 n. 1 (E.D.N.Y. Sept. 27, 2011) (citation and internal quotation marks omitted).
Therefore, with regard to this situation only, the Court will consider all of the Plaintiff’s
Opposition papers.
The Plaintiff also seeks permission to file sur-reply papers in opposition to the
Defendants’ reply papers. “Motions for leave to file sur-reply information [] are subject to the
sound discretion of the court.” De Pedrero v. Schweizer Aircraft Corp., 635 F. Supp. 2d 251,
258 (W.D.N.Y. 2009). In that regard, the Court notes that the Defendants raise at least one new
argument in its reply, namely, that the Plaintiff’s opposition papers are procedurally improper.
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The Plaintiff’s response to this argument in its proposed sur-reply memoranda provides relevant
information to the disposition of this case. Therefore, the Plaintiff’s request for permission to
file a sur-reply is granted. The Defendants’ request for permission to file a response to the
Plaintiff’s sur-reply memoranda is denied. The Court will now address the Defendants’ motions
to dismiss in turn.
II.
DISCUSSION
A. As to the Motion to Dismiss by DOH and the Senior State Officials
1. Rooker-Feldman and Preclusion
Although not urged by DOH and the Senior State Officials, the Court finds that it lacks
subject matter jurisdiction over the claims asserted against them by virtue of the Rooker–
Feldman Doctrine, which mandates that a federal district court may not review collateral attacks
upon a state court determination. See District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 476, 103 S. Ct. 1303, 75 L.Ed.2d 206 (1983) (explaining that review of a final
determination by a state court can be obtained only by the United States Supreme Court). “The
precise demarcations of the Rooker–Feldman doctrine on the one hand, and the preclusive effect
of common law res judicata and collateral estoppel on the other, remain obscure. Some courts
hold them effectively synonymous, interchangeable or at least co-extensive.” Harris v. New
York Dept. of Health, 202 F. Supp. 2d 143, 158 (S.D.N.Y. 2002); see also Hachamovitch v.
DeBuono, 159 F.3d 687, 696 (2d Cir. 1998) (noting that “[w]hether the Rooker–Feldman
doctrine is coextensive with preclusion or extends beyond preclusionary rules is a question that
has perplexed courts and commentators.”).
However, the doctrines differ in fundamental ways that may materially affect how a case
may be decided. In Feldman, the Supreme Court expressly declared as a ground for its holding
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that to the extent plaintiffs had sought appellate review in federal district court of a determination
by a state court, “the District Court lacked subject matter jurisdiction over the complaints.”
Feldman, 460 U.S. at 482. A dismissal so grounded is not a judgment on the merits of the
underlying case and does not of itself preclude a subsequent suit on the same issues. See Fed. R.
Civ. p. 41(b); St. Pierre v. Dyer, 208 F.3d 394, 399–401 (2d Cir. 2000); 18 James Wm. Moore et
al, Moore's Federal Practice (3d ed. 1997) (“Moore's Federal Practice”) § 131.30 [3][b].
By contrast, res judicata and collateral estoppel, resting on common law principles, presupposes
that the substance of the issues or claims deemed precluded was addressed in the prior litigation
and embodied in a corresponding final judgment that constitutes a ruling on the merits. See G. &
C. Merriam Co. v. Saalfield, 241 U.S. 22, 28, 36 S. Ct. 477, 60 L. Ed. 868 (1916); Shamley v.
ITT Corp., 869 F.2d 167, 170 (2d Cir. 1989).
Whether viewed under the doctrine of Rooker Feldman or preclusion principles, the
Plaintiff’s claims against DOH and the Senior State Officials cannot go forward. In the prayer
for relief, the Plaintiff’s complaint demands, as equitable remedies, that DOH be ordered to
(1) restore the Plaintiff's license to practice medicine; (2) expunge “all denigrating references” to
the Plaintiff in DOH’s records; and (3) issue a public apology to the Plaintiff. This relief goes to
the crux of the state court's judgment.
The State Appellate Division ruled unequivocally that DOH's determination was
supported by the record and that the DOH decision was not arbitrary and capricious. Moreover,
to redress the claimed injury, the equitable remedy the Plaintiff seeks represents a retrospective
challenge demanding injunctive relief to undo the license revocation judgment rendered by the
Hearing Committee. The rule was stated in Harris:
To this extent, [the Plaintiff’s] federal claim is not a general and prospective
attack on the constitutionality of a state rule, such as the absence of procedures
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permitting the reopening of disciplinary proceedings challenged in Hachamovitch,
but a particularized challenge directly or indirectly contesting the state court's
adjudication as it affected only him. Reduced to its core, therefore, in this action
[the Plaintiff] ‘in essence’ asks this Court to reverse the State's revocation of his
medical license.”
So viewed, [the plaintiff] 's claim effectively would require the Court to perform a
direct appellate review function of examining the state court's ruling . . . and
granting him essentially the same relief he failed to obtain before the Appellate
Division on the basis of the same record as well as on essentially the same
grounds that court deemed insufficient. It is precisely this form of stark secondguessing and undue federal intrusion that the Rooker–Feldman doctrine intended
to overcome by depriving federal district courts of subject matter jurisdiction over
cases that essentially demand appellate review of judgments rendered in state
judicial proceedings and thus seek to relitigate claims identical or inseparably
linked with matters already resolved by the state courts.
Harris, 202 F. Supp. 2d at 165.
Even though monetary damages could not be recovered in the article 78 proceeding, “the
central issue [the Plaintiff] alleges as the basis of his federal constitutional claim[s] we[re]
actually and necessarily decided against him in the Article 78 proceeding by the Appellate
Division's ruling that the State's revocation of [the plaintiff]'s medical license was not arbitrary or
capricious, was not contrary to law and was supported by a rational and substantial basis in fact.”
Id. at 172. Accordingly, the Court concludes that by application of the Rooker–Feldman
doctrine, the Court lacks subject matter jurisdiction over the causes of action against DOH and
the Senior State Officials.
Furthermore, the Plaintiff’s causes of action against these defendants are barred by
collateral estoppel. Pursuant to 28 U.S.C. § 1738, federal courts “must give to a state-court
judgment the same preclusive effect as would be given that judgment under the law of the State
in which the judgment was rendered.” Migra v. Warren City School Dist. Bd. of Educ., 465 U.S.
75, 81, 104 S. Ct. 892, 79 L. Ed.2d 56 (1984). In New York, collateral estoppel, or issue
preclusion, precludes a party from re-litigating in a subsequent action or proceeding an issue
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clearly raised in a prior action or proceeding and decided against that party, whether or not the
tribunals or causes of action are the same. See Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500,
478 N.Y.S.2d 823, 467 N.E.2d 487 (1984)); Davis v. Halpern, 813 F.2d 37, 39 (2d Cir. 1987)
(while res judicata does not apply to requests for monetary damages on civil rights claims by
reason of a prior judgment in an Article 78 proceeding, collateral estoppel applies).
The Court finds that the Plaintiff’s vague and conclusory due process and evidentiary
arguments were fully and fairly litigated on the merits in the article 78 proceeding. In particular,
the State Appellate Division concluded as follows:
“[W]e are unpersuaded by petitioner's assertions that various evidentiary and
procedural errors deprived her of her right to a fair hearing and due process.
...
Petitioner first challenges the admission of BPMC's exhibit No. 12, a CD
containing a spreadsheet data file detailing claims submitted by petitioner to
United Healthcare, the administrator of a healthcare benefit plan, for services she
billed from 1994 to 2007 for patients C through G, and exhibit No. 12A, a hard
copy printout of the spreadsheet. We find no record support for petitioner's
contentions that the CD and the spreadsheet that were admitted into evidence at
the hearing – and the spreadsheet that is now included in the record on appeal –
are illegitimate and/or uncertified copies or that BPMC is withholding copies of
the CD. Michael Stephano, a United Healthcare employee, testified that he
created the spreadsheet using data stored in the regular course of business in
United Healthcare's database and certified that the data file was a true, complete
and accurate record of the claims submitted by petitioner. Although copies of the
original CD were apparently made and provided to petitioner and the
Administrative Law Judge (hereinafter ALJ) which, when viewed on the ALJ's
computer, did not appear to be identical to the original CD, the Committee
considered the original CD in evidence, which was also projected onto a screen
during the hearing.
We also reject petitioner's challenge to the admission of this evidence on the
ground that the spreadsheet constituted inadmissible hearsay and was not
sufficiently reliable or accurate. Although it was discovered during the hearing
that the spreadsheet contained certain date and code description errors, these
errors were, for the most part, not substantive and affected only a small
percentage of the data on the spreadsheet. Also, the Committee was made aware
of the error by petitioner's cross-examination of the witnesses and the admission
of a clarifying affidavit from Stephano, and the Committee had before it copies of
the actual electronic claim submissions that petitioner made to United Healthcare
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from 1999 until 2004, substantiating the entries in the spreadsheet for that period.
As the exhibits were properly certified and authenticated, and given the
considerable leeway afforded the admission of evidence at the hearing, we discern
no abuse of discretion in the ALJ's decision to admit them.
Petitioner also has not shown that she was deprived of a fair hearing and due
process by any other of the ALJ's various rulings. The ALJ did not abuse his
discretion in granting BPMC's motion to withdraw patient A's testimony without
striking all of the charges related to patient A, as patient A's medical records
supported the remaining charges related to her. The ALJ also acted within the
bounds of his authority when he denied petitioner's motion for a mistrial based
upon patient B's failure to return to testify after evidence surfaced calling into
question the veracity of a limited portion of her testimony. Petitioner was able to
introduce evidence indicating that patient B may have misrepresented her
credentials during the hearing and the ALJ advised the Committee that she did not
respond to a subpoena. In sum, the claimed evidentiary errors were not so severe
as to infect the entire proceeding with unfairness given petitioner's full
opportunity to contest the evidence against her and present her own case
...
Petitioner also claims that her due process rights were violated because BPMC did
not offer her an additional interview to allow her to respond to allegations
concerning patients C through G before charges relating to those patients were
investigated and added (see Public Health Law § 230 [10] [a] [iii]). We cannot
agree. It is sufficient that petitioner received two preinvestigatory interviews
regarding allegations relating to patients A and B, and BPMC offered petitioner
an additional interview regarding the other patients before the hearing was
convened, which she declined. . . In any event, petitioner's due process rights
were protected by her receipt of the detailed amended statement of the charges
against her . . . In addition, petitioner was provided adequate time to prepare for
the hearing, and the Committee's refusal to grant her a second adjournment was
not unreasonable and did not deprive her of due process. . . We have also
examined petitioner's claims that BPMC engaged in misconduct throughout the
pendency of the proceedings against her and found them to be wholly
unsubstantiated.
Matter of Anghel, 86 A.D.3d at 869-871, 927 N.Y.S.2d at *2-3.
An appellate court's review of a BPMC determination is properly accorded estoppel
effect under New York law. See Damino v. O'Neill, 702 F. Supp. 949, 954 n. 1 (E.D.N.Y. 1987)
(plaintiff physician whose license was revoked after a disciplinary hearing was collaterally
estopped from claiming in federal court that he was denied a fair hearing and procedural due
12
process where those claims were raised before and decided by the Appellate Division). In light
of the extensive treatment the Appellate Division afforded the plaintiff’s procedural and
evidentiary challenges to the hearing, the Court finds that the Plaintiff’s claims against DOH and
the Senior State Officials are barred by collateral estoppel.
2. Eleventh Amendment
The Plaintiff’s claims against these defendants are also barred by the Eleventh
Amendment and the principles of sovereign immunity. The Second Circuit has declined to
decide whether a motion to dismiss made on sovereign immunity grounds is properly reviewed
as a challenge to the Court's subject matter jurisdiction under Rule 12(b)(1) or whether it is more
appropriately addressed in the context of a Rule 12(b)(6) motion. See State Emps. Bargaining
Agent Coal. v. Rowland, 494 F.3d 71, 77 n. 4 (2d Cir. 2007) (citing Wisc. Dep't of Corr. v.
Schacht, 524 U.S. 381, 391 (1998) (stating “we have not decided” whether “Eleventh
Amendment immunity is a matter of subject matter jurisdiction”)).
“The distinction is significant: while [the Court must] accept all factual allegations in a
complaint as true when adjudicating a motion to dismiss under [Rule] 12(b)(6), [the
Circuit has] held that, in adjudicating a motion to dismiss for lack of subject-matter
jurisdiction, a district court may resolve disputed factual issues by reference to evidence
outside the pleadings, including affidavits.”
Id. (internal citations omitted).
Given this ambiguity, the Court will follow the lead of several other district courts within
this Circuit and apply the Rule 12(b) (6) standard in analyzing the Defendants' sovereign
immunity arguments. See McMillan v. N.Y. State Bd. of Elections, 2010 WL 4065434, at *3
(E.D.N.Y. Oct. 15, 2010) (looking “only to the pleadings and to state and federal law” to resolve
questions regarding sovereign immunity); Jude v. New York, 2009 WL 928134, at * 1 n. 2
(S.D.N.Y. Mar. 30, 2009) (applying the Rule 12(b)(6) standard to sovereign immunity analysis).
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The Supreme Court has clarified the pleading standards applicable in evaluating a motion
to dismiss under Rule 12(b)(6). First, in Bell Atlantic Corporation v. Twombly, 550 U.S. 544
(2007), the Court disavowed the well-known statement in Conley v. Gibson, 355 U.S. 41, 45–46
(1957) that “a complaint should not be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.” See Twombly, 550 U.S. at 561 (quoting Conley, 355 U.S. at 45–46)
(internal quotation marks omitted). Instead, to survive a motion to dismiss under Twombly, a
plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face.” Id.
at 570.
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual allegations must
be enough to raise a right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).
Id. at 555 (citations and internal quotation marks omitted).
“The Eleventh Amendment bars suits in federal court by citizens against a state and its
agencies, absent waiver of immunity and consent to suit by the state or abrogation of
constitutional immunity by Congress.” Miller v. Carpinello, No. 06 Civ. 12940(LAP), 2007 WL
4207282, at *2 (S.D.N.Y. Nov. 20, 2007). Furthermore, “the doctrine of sovereign immunity
applies not only to a state but to a state agency such as the DOH.” Cmty. Healthcare Assoc. of
New York v. New York State Dep't of Health, 10 CIV. 8258 TPG, 2011 WL 2162983 at *3
(S.D.N.Y. May 26, 2011) ; see also Figueras v. Walker, 95-CV-0931, 1996 U.S. Dist. LEXIS
2098, at *4 (N.D.N.Y. Feb. 15, 1996) (holding that the Eleventh Amendment barred plaintiff's
civil rights claims against the BPMC); Diblasio v. Novello, 01 Civ. 4498, 2002 U.S. Dist. LEXIS
18424, at *26 (S.D.N.Y. Sept. 30, 2002) (DOH is an arm of the state for purposes of the
14
Eleventh Amendment), vacated, in part, on other grounds, 344 F.3d 292 (2d Cir. 2003), cert.
denied, 541 U.S. 988, 124 S. Ct. 2018, 158 L. Ed. 2d 492 (2004); Lee v. New York State Dep't
of Health, 2001 U.S. Dist. LEXIS 11287, at *22-23 (S.D.N.Y. Mar. 26, 2001) (same).
The Senior State Officials are also entitled to invoke the Eleventh Amendment as a bar to
the Plaintiff's claims against them in their official capacities for retrospective relief. A suit for
damages against a state official in his or her official capacity “is deemed to be a suit against the
state, and the official is entitled to invoke the Eleventh Amendment immunity belonging to the
state.” Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993); see also Will v.
Mich. Dep't of State Police, 491 U.S. 58, 71 (1989); Ford v. Reynolds, 316 F.3d 351, 354 (2d
Cir. 2003).
Nor can the Plaintiff circumvent the Eleventh Amendment through the doctrine of Ex
Parte Young, which “allows a suit for injunctive [or declaratory] relief challenging the
constitutionality of a state official's actions in enforcing state law.” CSX Transp., Inc. v. New
York State Office of Real Prop. Servs., 306 F.3d 87, 98 (2d Cir. 2002) (internal quotation marks
and alteration omitted); see also Arthur v. Nyquist, 573 F.2d 134, 138 (2d Cir. 1978). While the
Plaintiff seeks affirmative injunctive relief in the form of reinstatement of her medical license,
“[b] ecause an injunction is merely a remedy and [] not a cause of action, a cause of action must
exist before injunctive relief may be granted.” Lopez v. Wash. Mut. Bank, F.A., No. 1:09–CV–
1838, 2010 WL 1558938, at *9 (E.D. Cal. Apr. 19, 2010). Here, the Plaintiff has not plead a
cause of action as against DOH and the Senior State Officials. Thus, the Plaintiff’s request for
injunctive relief must be denied.
Finally, although the Eleventh Amendment bars suit against state officials in their official
capacities, it does not bar “a suit against a state officer in his [or her] individual capacity for
15
unconstitutional or wrongful conduct fairly attributable to the officer himself [or herself], so long
as the relief is sought not from the state treasury but from the officer personally.” Alden v.
Maine, 527 U.S. 706, 757, 119 S. Ct. 2240, 2267-68, 144 L. Ed. 2d 636 (1999). However, to the
extent the Senior State Officials were sued in their individual capacities, the claims fail for lack
of an allegation of personal involvement. See Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060,
1065 (2d Cir. 1989). Indeed, the amended complaint is totally devoid of facts establishing the
personal involvement of any of the Senior State Officials.
For the reasons that Rooker-Feldman, collateral estoppel, and the Eleventh Amendment
bar relitigation of the Plaintiff’s claims against DOH and the Senior State Officials, allowing an
amendment of the complaint to enable the Plaintiff to replead her claims would be futile. See
Acito v. IMCERA Group, Inc., 47 F.3d 47, 54–55 (2d Cir. 1995) (amendment of the complaint is
futile where it would fail to cure the deficiencies of the original complaint); see also Milanese v.
Rust–Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001) (amendment futile where it would not
survive a subsequent motion to dismiss); In re American Express Co. Shareholder Litig., 39 F.3d
395, 402 (2d Cir. 1994). Accordingly, the Court grants the motion by dismiss the amended
complaint by the DHO and the Senior State Officials and the amended complaint is dismissed as
to them with prejudice.
B. At to the Motion to Dismiss by The Individual State Defendants
It is not clear if the Individual Defendants were parties to the Article 78 proceeding and,
if so, whether the Rooker-Feldman doctrine deprives the Court of subject matter jurisdiction as
to the claims against them. In any event, to the extent the Plaintiff seeks monetary recovery
against those Individual Defendants-state employees in their official capacities, the Plaintiff’s
claims are barred by the Eleventh Amendment for the reasons explained above.
16
Furthermore, the Plaintiff’s claims against the individual defendants in their personal
capacities are barred by the doctrine of absolute immunity. The absolute immunity of the
common law still exists today and “[i]n enacting § 1983, Congress did not intend to override
well-established immunities or defenses under the common law.” Will v. Michigan Dep't of
State Police, 491 U.S. 58, 67, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Undoubtedly,
administrative law proceedings function in a comparable atmosphere and adjudicate similar
issues to those settled in judicial proceedings. See Butz v. Economou, 438 U.S. 478, 508, 98 S.
Ct. 2894, 57 L. Ed. 2d 895 (1978) (“We think that adjudication within a federal administrative
agency shares enough of the characteristics of the judicial process that those who participate in
such adjudication should also be immune from suits for damages.”). Indeed, administrative
proceedings, like the BPMC disciplinary proceedings, are similar to judicial proceedings in that
“the disappointment occasioned by an adverse decision, often finds vent in imputations of
[malice].” Id. at 513, 98 S. Ct. 2894 (quoting Bradley v. Fisher, 13 Wall. 335, 348, 20 L. Ed. 646
(1872)). “Therefore, this Court recognizes that absolute immunity extends to certain state
officials who take part in the BPMC's disciplinary proceeding.” (Bloom v. New York State
Com'r of Health, 573 F. Supp. 2d 732, 740 (E.D.N.Y. 2004).
As with administrative law judges, the common law precedents also extend absolute
immunity to prosecutors participating in the administrative process. See Butz, 438 U.S. at 50910, 98 S. Ct. 2894 (citing Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128
(1976) (holding that a state prosecutor was absolutely immune from Section 1983 liability)). If
absolute immunity were not afforded prosecutors, there could be “an adverse effect on the
functioning of the criminal justice system, not only by discouraging the initiation of
17
prosecutions, . . . but also by affecting the prosecutor's conduct of the trial.” Id. at 510, 98 S. Ct.
2894 (citations omitted).
Butz also extended this prosecutorial immunity to officials who perform analogous
functions to those of a prosecutor. See Id. at 515, 98 S. Ct. 2894 (“[A]gency officials performing
certain functions analogous to those of a prosecutor should be able to claim absolute immunity”).
Hence, here, this immunity protects the Individual Defendant-state employees for their role in
presenting evidence and taking action against the Plaintiff. See Id. at 516, 98 S. Ct. 2894 (“We
can see no substantial difference between the function of the agency attorney in presenting
evidence in an agency hearing and the function of the prosecutor who brings evidence before the
court.”).
Similarly, this absolute immunity extends to witnesses, such as Heaphy and non-state
employee Petranker, who testified at the administrative hearing. Rolon v. Henneman, 517 F.3d
140, 145 (2d Cir. 2008) (“The Supreme Court has extended absolute immunity to police officers
testifying at judicial proceedings on the ground that this type of immunity existed at common
law for citizen-witnesses.”). The Supreme Court has reasoned that without such immunity, “[a]
witness's apprehension of subsequent damages liability might induce . . . self-censorship,” either
by making witnesses reluctant to come forward in the first place or by distorting their
testimony.” Briscoe v. LaHue, 460 U.S. 325, 333, 103 S. Ct. 1108, 75 L. Ed.2d 96 (1983). Such
self-censorship may “deprive the finder of fact of candid, objective, and undistorted evidence.”
Id.
Having determined that BPMC disciplinary proceedings are analogous to judicial
proceedings, this Court finds that defendants Heaphy and Petranker are entitled to absolute
immunity relative to the testimony provided in connection with the Plaintiff's hearing. See
18
Yoonessi v. New York State Bd. for Prof'l Med. Conduct, 03-CV-871S, 2005 WL 645223, at
*14 (W.D.N.Y. Mar. 21, 2005) affd, 162 F. Appx 63 (2d Cir. 2006). Having found that the
Plaintiff’s claims against Heaphy are barred by the Eleventh Amendment and the doctrine of
absolute immunity, the Court need not address the contention of the Individual Defendants that
the Plaintiff failed to properly serve Heaphy. Accordingly, the Court grants the motion by the
Individual Defendants and dismisses the amended complaint as against them with prejudice.
C.
As to the Motion to Dismiss by the United Defendants
The Plaintiff alleges that the United Defendants (1) violated her Fourth and Fourteenth
Amendment rights against unreasonable searches; (2) engaged in abuse of process in violation of
her Fourth, Fifth, and Fourteenth Amendment rights and New York State law; (3) committed
fraud pursuant to Fed. R. Civ. P. 9(b); (4) deprived Plaintiff of her rights without due process and
equal protection of the laws in violation of her Fourth, Fifth, Six, and Fourteenth Amendment
rights; (5) violated her substantive due process rights and subjected the Plaintiff to stigma-plus;
(6) conspired to interfere with the Plaintiff’s rights pursuant to U.S.C. § 1985; and (7) committed
conversion under New York state law. As noted above, in support of these causes of action, the
Plaintiff alleges that (1) the United Defendants reported the Plaintiff to POLEP for improper
billing forms; (2) Stephano created a CD with manipulable, false data regarding the Plaintiff’s
billing practices; and (3) Stephano made false misrepresentations under oath or in his affidavits
during the Plaintiff’s administrative hearing.
It does not appear the United Defendants were parties to the article 78 proceeding and to
the extent the Plaintiff seeks monetary damages against the United Defendants, the Court finds
that the Rooker-Feldman doctrine does not deprive the Court of subject matter jurisdiction as to
19
the claims against them. Furthermore, the Eleventh Amendment does not apply to private parties
like the United Defendants.
Nonetheless, some of the Plaintiff’s causes of action against the United Defendants are
invalid on their face. First, no cause of action lies under Fed. R. Civ. P 9(b), which simply
imposes a heightened pleading standard for fraud claims. Second, the Plaintiff’s causes of action
for perjury and subornation of perjury fail because “in the absence of statute, no action lies to
recover damages caused by perjury or subornation of perjury, whether committed in the course
of, or in connection with, a civil action or suit, a criminal prosecution, or other proceeding, and
whether the perjurer was a party to or a witness in the action or proceeding.” Liddell v. Smith,
345 F.2d 491, 494 (7th Cir. 1965).
Moreover, the Plaintiff is collaterally estopped from challenging the evidentiary
admission of the Stephano CD at the administrative hearing because this issue was fully and
fairly litigated before the State Appellate Division. Lastly, the allegations concerning
Stephano’s testimony at the administrative hearing are barred by virtue of absolute immunity,
which as explained above, protects testifying witnesses from civil liability arising out of their
testimony.
The Plaintiff’s remaining causes of action against the United Defendants fail to survive
scrutiny in the Rule 12(b)(6) context. For a private party to be subject to Section 1983, a two
part test must be performed to determine if there is “fair attribution” to the State of the alleged
conduct, i.e. “the conduct causing the deprivation of a federal right [must] be fairly attributable
to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S. Ct. 2744, 73 L. Ed.2d 482
(1982). To find “fair attribution:” (1) “the deprivation must be caused by the exercise of some
right or privilege created by the State or by a rule of conduct imposed by the State or by person
20
for whom the State is responsible”; and (2) “the party charged with the deprivation must be a
person who may fairly be said to be a state actor,” meaning a state official or a person who has
conspired with a state official. Id. Indeed, “section 1983 actions against private individuals must
be limited, lest private parties [] face constitutional litigation whenever they seek to rely on some
state rule governing their interactions with the community surrounding them.” Bloom, 573 F.
Supp. 2d at 738 (citation and quotation marks omitted).
That said, a private actor may be considered to be acting under the color of state law for
purposes of § 1983 if the private actor was “‘a willful participant in joint activity with the State
or its agents.’” See Ciambriello v. County of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (quoting
Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970)).
However, for example, the providing of information to or summoning of 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. See Ginsberg v. Healey Car &
Truck Leasing, Inc., 189 F.3d 268, 272 (2d Cir. 1999) (“Healey's provision of background
information to a police officer does not by itself make Healey a joint participant in state action
under section 1983. . . . Officer Fitzgerald's active role in attempting to resolve the dispute after
Healey requested police assistance in preventing further disturbance also does not, without more,
establish that Healey acted under color of law.” (citations omitted)); Drayton v. Toys ‘R’ Us Inc.,
645 F. Supp. 2d 149, 163 (S.D.N.Y. 2009) (“‘[F]urnishing information to the police does not by
itself make someone a joint participant in state action under Section 1983.’” (quoting Valez v.
City of N.Y., No. 08 Civ. 3875, 2008 WL 5329974, at *3 (S.D.N.Y. Dec. 16, 2008)).
Accordingly, the fact that the United Defendants reported the Plaintiff to POLEP because of
improper billing forms does not provide a basis for liability under Section 1983.
21
The plaintiff is correct in stating that a private party may act under color of state law
when the private party “conspires with a state official to violate the plaintiff's constitutional
rights. . .” Fisk v. Letterman, 401 F.Supp.2d 362, 378 (S.D.N.Y.2005), Report and
Recommendation adopted in relevant part, 401 F. Supp. 2d 362 (S.D.N.Y.2005). To establish a
§ 1983 conspiracy, a plaintiff must produce evidence of (1) an agreement between the private
party and state actors, (2) concerted acts to inflict an unconstitutional injury, and (3) an overt act
in furtherance of the goal. See Carmody v. City of N.Y., No. 05–CV–8084 (HB), 2006 WL
1283125, at *5, 2006 U.S. Dist. LEXIS 25308, at *16 (S.D.N.Y. May 11, 2006) (citing
Ciambriello v. County of Nassau, 292 F.3d 307, 324–25 (2d Cir. 2002)). Here, as a matter of
law, there is no allegation that the United Defendants were willful participants in a joint activity
or that they acted under color of state law as part of a § 1983 conspiracy.
Finally, the plaintiff’s reliance on the “state-created danger” doctrine is misplaced. The
“state-created danger” doctrine holds government officials liable for private harms if their
“affirmative conduct . . . communicates, explicitly or implicitly, official sanction of private
violence.” Okin v. Vill. of Cornwall–On–Hudson Police Dep't, 577 F.3d 415, 429 (2d Cir. 2009);
see also Lombardi v. Whitman, 485 F.3d 73, 80 (2d Cir. 2007) (noting potential liability for a
government official whose “affirmative act ... creates an opportunity for” a third party to harm a
victim). This doctrine is wholly inapplicable where, as here, the Plaintiff merely alleges that the
United Defendants acted under the color of law by summoning the aid of the State to investigate
the Plaintiff for committing improper acts and provided the State with information in support of
the State’s independent investigation of the Plaintiff.
The Plaintiff similarly fails to state a claim under 42 U.S.C. § 1985, which requires
pleading of (1) a conspiracy (2) for the purpose of depriving a person or class of persons of the
22
equal protection of the laws, or the equal privileges and immunities under the laws; (3) an overt
act in furtherance of the conspiracy; and (4) an injury to the plaintiff's person or property, or a
deprivation of a right or privilege of a citizen of the United States. See Traggis v. St. Barbara's
Greek Orthodox Church, 851 F.2d 584, 586-87 (2d Cir. 1988) (citing Griffin v. Breckenridge,
403 U.S. 88, 102-03, 91 S. Ct. 1790 (1971)); see also United Bhd. of Carpenters, Local 610 v.
Scott, 463 U.S. 825, 828–29, 103 S. Ct. 3352, 3356, 77 L. Ed. 2d 1049 (1983) . A plaintiff must
allege each of these elements with “at least some degree of particularity.” Powell v. Workmen's
Compensation Board, 327 F.2d 131, 137 (2d Cir. 1964). Although no allegation of state action is
needed to state a claim under 42 U.S.C. § 1985, the complaint must allege that the plaintiff is a
member of a protected class or that he was injured as a result of racial or other class-based
documentation. See e.g. Griffin, 403 U.S. at 102-04.
Here, the Plaintiff has not stated her race, and does not allege that the United Defendants
discriminated against her on the basis of race or that she is a member of a protected class.
Moreover, even if the Plaintiff was a member of a protected class, she alleges no facts that
suggest that this was the basis for the alleged violation of her rights. The Court therefore
dismisses the Plaintiff’s Section 1985 claim.
Having dismissed the Plaintiff's federal 1983 and 1985 claims, the only remaining cause
of action against the United Defendants sounds in state law conversion.
To state a claim for conversion under New York law, a plaintiff must show that
“someone, intentionally and without authority, assume[d] or exercise[d] control over personal
property belonging to someone else, interfering with that person's right of possession.” Colavito
v. N.Y. Organ Donor Network, Inc., 8 N.Y.3d 43, 49–50, 827 N.Y.S.2d 96, 860 N.E.2d 713
(2006) (citation omitted). Put in other terms, a plaintiff must show (1) a “possessory right or
23
interest in the property and (2) defendant's dominion over the property or interference with it, in
derogation of plaintiff's rights.” Id. at 50, 827 N.Y.S.2d 96, 860 N.E.2d 713 (citations omitted).
Interference with a plaintiff's right to possession may be “by a wrongful: (i) taking; (ii) detention;
or (iii) disposal.” Corporacion Fruticola De Chincha v. Watermelon Depot, Inc., 2008 W L
2986276, at *4 (S.D.N.Y. July 31, 2008) (citing Pierpoint v. Hoyt, 260 N.Y. 26, 29, 182 N.E.
235 (1932)). “Some affirmative act – asportation by the defendant or another person, denial of
access to the rightful owner or assertion to the owner of a claim on the goods, sale or other
commercial exploitation of the goods by the defendant – has always been an element of
conversion.” State v. Seventh Regiment Fund, Inc., 98 N.Y.2d 249, 260, 746 N .Y.S.2d 637, 774
N.E.2d 702 (2002) (citations omitted).
In this case, the Plaintiff fails to adequately allege that it that it possessed legal ownership
or a superior right of possession to a “specific identifiable thing” over which the United
Defendants exercised unauthorized dominion. Law Offices of K.C. Okoli, P.C. v. BNB Bank,
N.A., 481 F. Appx 622, 627 (2d Cir. 2012) (citation omitted). Indeed, the Plaintiff cites no
authority suggesting that a medical practice could suffice as a “specific identifiable thing,” the
unauthorized dominion of which, provides a basis for a conversion claim. Thus, the Court
dismisses the Plaintiff’s claim for conversion against the United Defendants.
III. CONCLUSION
In sum, the Court finds that the Plaintiff failed to properly plead any cause of action.
Thus, it is hereby
ORDERED, that the motion to dismiss the amended complaint by DOH and the Senior
State Official Defendants is granted and the complaint is dismissed as to them with
prejudice; and it is further;
24
ORDERED, that the motion to dismiss the amended complaint by the Individual
Defendants is granted and the complaint is dismissed as to them with prejudice; and it is
further;
ORDERED, that the motion to dismiss the amended complaint by the United Defendants
is granted and the complaint is dismissed as to them with prejudice; and it is further;
ORDERED, that the Clerk of the Court is respectfully directed to mark the case as
closed.
SO ORDERED.
Dated: Central Islip, New York
May 29, 2013
_/s/ Arthur D. Spatt_______
ARTHUR D. SPATT
United States District Judge
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