Momrow v. The County of Rensselaer et al

Filing 31

MEMORANDUM-DECISION and ORDER - That the moving defendants' 6 Motion to Dismiss is DENIED. That the parties contact Magsitrate Judge Daniel Stewart to schedule further proceedings consistent with the Memorandum-Decision and Order. Signed by Senior Judge Gary L. Sharpe on 3/30/2016. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
CHARLES MOMROW,
Plaintiff,

8:15-cv-521
(GLS/DJS)

v.
THE COUNTY OF RENSSELAER
et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Law Offices of Elmer Robert
Keach, III, P.C.
One Pine Plaza - Suite 109
Albany, NY 12205
FOR THE DEFENDANTS:
The County of Rensselaer,
Jack Mahar, & David Hetman
Carter, Conboy Law Firm
20 Corporate Woods Boulevard
Albany, NY 12211
Elaine Young
Luibrand Law Firm, PLLC
950 New Loudon Road
Latham, NY 12110
Clifford McLean
NO APPEARANCE
Gary L. Sharpe

ELMER R. KEACH, III, ESQ.
MARIA K. DYSON, ESQ.

JAMES A. RESILA, ESQ.

KEVIN A. LUIBRAND, ESQ.

Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Charles Momrow commenced this action pursuant to 42
U.S.C. § 1983 against defendants the County of Rensselaer and
employees of the County jail including Jack Mahar, the County Sheriff,
Elaine Young, the nursing supervisor, David Hetman, a Lieutenant, and
Clifford McLean, the maintenance supervisor. (Am. Compl., Dkt. No. 25.)
Momrow alleges that defendants violated his right to privacy under the
Fourteenth Amendment and that both the County and its supervisors are
liable for the alleged unconstitutional conduct.1 (Id.) Pending is a motion
to dismiss filed by the County, Sheriff Mahar, and Lieutenant Hetman.
(Dkt. No. 6.) For the reasons that follow, the motion is denied.
II. Background

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Momrow does not specify whether the named defendants are sued in their individual
or official capacities, however, this is of no moment because defendants are amenable to suit
under either theory. See generally Kentucky v. Graham, 473 U.S. 159, 166-68 (1985); see
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n. 55 (1978) (holding that “local government
officials sued in their official capacities are ‘persons’ under [42 U.S.C.] § 1983 in those cases
in which . . . a local government would be suable in its own name”).

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A.

Facts2
Between 2007 and 2011, Sheriff Mahar either accessed or directed

his subordinate employees to access the personal medical records of
County employees or persons who had lawsuits pending before the
County. (Am. Compl. ¶ 13.) Individuals were targeted for reasons such as
participating in labor unions, supporting Sheriff Mahar’s opponent in a past
election, applying for New York General Municipal Law § 207(c) benefits,
or suing the County. (Id.) Additionally, Sheriff Mahar accessed or directed
others, including Young and Lieutenant Hetman, to access the medical
records of County employees on “sick abuse” status. (Id.) In 2004, Sheriff
Mahar implemented a policy regarding sick leave. (Id. ¶ 12.) County
employees who violated the policy were placed on “sick abuse” status and
“were denied privileges and/or required to submit a physician’s note to
explain [their] absence.” (Id.)
County employees who worked at the County jail medical facility
often collaborated with Samaritan Hospital located in Troy, New York. (Id.
¶ 9.) The hospital regularly treated County jail inmates. (Id.) Additionally,

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The facts are drawn from Momrow’s amended complaint and presented in the light
most favorable to him.

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the hospital allowed the County’s nursing staff to access its electronic
medical records to track the care of its inmates. (Id.) County nurses were
only authorized to access inmate medical records on a computer terminal
located at the hospital. (Id.) Young signed an agreement consistent with
this restricted access. (Id. ¶ 10.) As part of the agreement, Young was
responsible to secure the password for the computer terminal, which
permitted access to medical files of all patients, including non-inmates. (Id.
¶ 11.) Young, however, taped the password to her office computer or left it
in an easily accessible drawer in her desk. (Id.) Because Young failed to
secure her password, County nursing staff and correction officers obtained
it and accessed restricted medical records. (Id.)
In March 2013, Samaritan Hospital notified individuals, including
County employees, that their medical records had been improperly
accessed by other County employees. (Id. ¶ 14.) In response, the County
jail launched an internal investigation headed by Lieutenant James Karam.
(Id. ¶ 15.) In a deposition in a related litigation, Lieutenant Karam testified
that the investigation revealed that Sheriff Mahar and Lieutenant Hetman
were directly involved in improperly accessing the medical records of
County employees. (Id.) The investigation also revealed that Young kept
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the password for the hospital’s computer terminal in her locked office, and
only she and Lieutenant Hetman had keys to her office. (Id.) Young
worked the day shift while Lieutenant Hetman regularly worked evening
hours when the unauthorized access occurred. (Id.) Additionally, the
investigation noted that Sheriff Mahar was exclusively responsible for
approving sick leave and injury related benefits. (Id.)
After the investigation, County employees checked whether their
medical records had been wrongfully accessed. (Id. ¶ 17.) In January
2014, a County employee learned and informed Momrow that his medical
records had been accessed. (Id.) Momrow came to learn that his medical
records were accessed on January 11, 14, and 21, 2010. (Id.) On those
same dates, Momrow suffered from a severe psychological breakdown and
received treatment for severe depression at Samaritan Hospital. (Id.)
In addition, at a deposition in a related litigation, Young admitted that
she accessed Momrow’s medical records at the direction of Clifford
McClean, Momrow’s supervisor. (Id. ¶ 16.) Young acknowledged that she
did not have Momrow’s consent to review information including the
medication he received and information related to his outpatient
psychological treatment, his emergency room care, and his acute medical
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care. (Id.) Momrow and McClean did not get along, and Momrow believes
McClean maliciously instructed Young to access Momrow’s medical
records. (Id.)
Furthermore, although Young and Sheriff Mahar knew that County
employees were accessing prohibited medical records, they failed to enact
policies or training regarding medical privacy. (Id. ¶ 18.) Sheriff Mahar
noted that Young was the supervisor primarily responsible for enacting
policies related to the medical department. (Id.) Sheriff Mahar, Lieutenant
Hetman, and Young were responsible for enacting policies and procedures
that governed the conduct of County jail employees. (Id. ¶ 29.)
On April 29, 2015, Momrow commenced this action pursuant to 42
U.S.C. § 1983 against the County, Sheriff Mahar, Young, Lieutenant
Hetman, and McClean. (See generally Compl., Dkt. No. 1.) The County,
Sheriff Mahar, and Lieutenant Hetman (hereinafter “moving defendants”)
filed the pending pre-answer motion to dismiss. (Dkt. No. 6.) For the
reasons that follow, the court denies the motion.
III. Standard of Review
The standard of review under Fed. R. Civ. P. 12(b)(6) is well
established and will not be repeated here. For a full discussion of the
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standard, the court refers the parties to its prior opinion in Ellis v. Cohen &
Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010), abrogated on
other grounds by Altman v. J.C. Christensen & Assocs., Inc., 786 F.3d 191
(2d Cir. 2015).
IV. Discussion
Moving defendants argue that Momrow fails to state a claim for two
reasons. (Dkt. No. 6, Attach. 1 at 4-7.) First, they contend that Momrow
failed to allege that his medical information was publicly disclosed. (Id. at
4-5.) Second, they assert that severe depression is not a medical
condition which warrants constitutional protection. (Id. at 5-7.) Momrow
opposes and contends that public dissemination is not a requirement of his
Fourteenth Amendment right to privacy claim. (Dkt. No. 13 at 8-10.)
Additionally, Momrow stresses that mental health diagnoses, including
severe depression, have the requisite severity and social stigma to be
constitutionally protected. (Id. at 10-11.) The court decidedly agrees with
Momrow.
The Due Process Clause of the Fourteenth Amendment protects
against state intrusion of a person’s liberty including fundamental personal
rights “‘implicit in the concept of ordered liberty’” such as the right to
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privacy. Roe v. Wade, 410 U.S. 113, 152 (1973) (quoting Palko v.
Connecticut, 302 U.S. 319 (1937)); see U.S. Const. amend. XIV § 1. This
guarantee of privacy extends to an individual’s interest in avoiding the
disclosure of certain personal matters. See Whalen v. Roe, 429 U.S. 589,
599-600 (1977). Courts have identified this right as “a right to
‘confidentiality,’ to distinguish it from the right to autonomy and
independence in decision-making.” Doe v. City of New York, 15 F.3d 264,
267 (2d Cir. 1994). Confidentiality in one’s medical information was
subsequently recognized as constitutionally protected because
“‘[i]nformation about one’s body and state of health is [a] matter which the
individual is ordinarily entitled to retain within the private enclave where he
may lead a private life.’” Id. (quoting United States v. Westinghouse Elec.
Corp., 638 F.2d 570, 577 (3d Cir. 1980)). Courts have routinely applied
intermediate scrutiny to evaluate the government’s intrusion into disclosing
protected medical information. See id. at 269-70; O’Connor v. Pierson,
426 F.3d 187, 202-03 (2d Cir. 2005).
Whether an individual has a constitutionally protected privacy interest
in his particular medical information will vary with his condition. See
Matson v. Bd. of Educ. of City Sch. Dist. of N.Y., 631 F.3d 57, 64-65 (2d
8

Cir. 2011) (explaining that “[a] general medical determination or
acknowledgment that a disease is serious does not give rise ipso facto to a
constitutionally-protected privacy right”); Powell v. Schriver, 175 F.3d 107,
111 (2d Cir. 1999). The particular medical condition must be both serious
and “likely to bring about public opprobrium.” Matson, 631 F.3d at 66.
Accordingly, courts “have . . . focused [their] constitutional analysis on
whether revealing one’s condition would expose a person not to
understanding or compassion but to discrimination and intolerance.” Id. at
67 (internal quotation marks and citation omitted).
Diseases litigated thus far at the Second Circuit revealed obvious
results. See Matson, 631 F.3d at 67-69 (holding fibromyalgia is not
constitutionally protected); O’Connor, 426 F.3d at 201 (“[The court] easily
h[e]ld that [the plaintiff] had a protected privacy right in the medical records
[containing the results of a psychiatric exam].”); Powell, 175 F.3d at 111-12
(holding a prisoner had the right to confidentiality in his transsexualism and
HIV-positive status); Doe, 15 F.3d at 267 (finding a plaintiff had a right to
confidentiality in his HIV status). The court anticipates that this inquiry will
become increasingly demanding as attorneys litigate whether constitutional
protection attaches to a particular disease in any given case. As may
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become apparent in this district, the outcomes for plaintiffs alleging the
very same conduct may vacillate based on their particular medical
condition. See generally Hancock v. Cty. of Rensselaer, No. 13-cv-1184;
Karam v. Cty. of Rensselaer, No. 13-cv-1018; Snyder v. Cty. of
Rensselaer, No. 14-cv-242; Pasinella v. Cty. of Rensselaer, No. 13-cv-607.

That said, serious depression and other psychiatric conditions
undoubtedly qualify for constitutional protection. See O’Connor, 426 F.3d
at 201. To be sure, “[m]edical information in general, and information
about a person’s psychiatric health . . . in particular, is information of the
most intimate kind.”3 Id. The court does not pretend to have medical
expertise as “[l]ay people are not qualified to determine other people’s
medical fitness” and “psychiatry [is] a discipline that can be practiced only
by professionals.” Id. at 202. Therefore, the court will consider what the

3

Moving defendants assert that “O’Connor is no longer the proper authority in the
Second Department [sic]” and contend that Matson, while “not expressly overrul[ing]
O’Connor,” modified its holding that “‘protect[ed] all medical conditions from disclosure.’” (Dkt.
No. 15 at 4-5 (quoting Matson, 631 F.3d at 65).) Moving defendants’ argument is misguided.
Nowhere in O’Connor does the Second Circuit hold that all medical conditions are
constitutionally protected. O’Connor only determined that the plaintiff had a protected privacy
right in the results of his psychiatric exam. See 426 F.3d at 201-02. The Matson court recited
the plaintiff’s interpretation of O’Connor, but swiftly “reject[ed] [plaintiff’s] reading.” Matson,
631 F.3d at 65. Consequently, this court rejects moving defendants’ assertion that O’Connor
is bad law.

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experts say.
Depression is a mood disorder that causes severe symptoms lasting
at minimum two weeks, which impacts a person’s outlook and daily
activities including sleep, diet, and work. See Depression, Nat’l Inst. of
Mental Health, https://www.nimh.nih.gov/health/topics/depression
/index.shtml (last visited Mar. 24, 2016). Signs of depression include, but
are not limited to, persistent sadness and anxiety, loss of interest in
hobbies and activities, decreased energy, appetite and weight changes,
difficulty concentrating and making decisions, and suicidal thoughts or
attempts. See id.
Although 15.7 million adults living in the United States in 2014, or 6.7
percent, had at least one major depressive episode within the previous
year, see Major Depression Among Adults, Nat’l Inst. of Mental Health,
https://www.nimh.nih.gov/health/statistics/prevalence/major-depressionamong-adults.shtml (last visited Mar. 24, 2016), social stigma persists.
One study reported that twenty-one percent of respondents agreed that
“[a]nyone with a history of mental problems should be excluded from taking
public office,” and that “[a]s soon as a person shows signs of mental

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disturbance, he should be hospitalized.”4 Health & Social Care Info. Ctr.,
Survey Report — Attitude to Mental Illness 9 (2011),
www.hscic.gov.uk/catalogue/PUB00292/atti-ment-illn-sur-rep.pdf (last
visited Mar. 24, 2016). Eighty-five percent of respondents agreed that
people with mental illness experience stigma and discrimination. See id. at
29. It is no surprise that forty-three percent of respondents reported that
they would feel uncomfortable talking to their employer about their mental
health. See id. at 5, 28-29.
In light of this research and well-documented statistics, the court is
surprised by moving defendants’ position that “depression does not carry
any sort of social stigma or result in discrimination in our society.” (Dkt.
No. 6, Attach. 1 at 7 (emphasis added).) This argument is offensive to the
nearly forty-four million American adults who suffer from mental illness.
See Any Mental Illness Among U.S. Adults, Nat’l Inst. of Mental Health,

4

The court understands that mental illness encompasses conditions such as
depression, bipolar disorder, schizophrenia, and anxiety disorders. See Mental Health Facts in
America, Nat’l All. on Mental Illness, https://www.nami.org/NAMI/media/NAMIMedia/Infographics/GeneralMHFacts.pdf (last visited Mar. 22, 2016). Additionally, the court
acknowledges that the severity of such conditions exist on a continuum. See Joan
Bibelhausen et al., Reducing the Stigma: The Deadly Effect of Untreated Mental Illness & New
Strategies for Changing Outcomes in Law Students, 41 Wm. Mitchell L. Rev. 918, 920 (2015).
Research, however, suggests that the stigma associated with mental illness is shared by all
types of diagnoses. See id. at 920-26.

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www.nimh.nih.gov/health/statistics/prevalence/any-mental-illness-amiamong-us-adults.shtml (last visited Mar. 24, 2016). What is more, moving
defendants latch onto dicta in Matson and argue there is no social stigma
associated with depression because pharmaceutical companies regularly
advertise antidepressants. (Dkt. No. 6, Attach. 1 at 6-7 (citing Matson, 631
F.3d at 67-68).) Moving defendants’ position is undercut by the dissent in
Matson, which found the majority’s allusion to the significance of
advertisements “puzzling.” Id. at 74 (Straub, J., dissenting). In other
words, the dissent deplores the majority’s failure to explain “how the fact of
televised advertisements for a drug treatment bears on the issue of
whether a condition is highly personal or carries a social stigma.” Id. at 74,
74 n.5 (explaining that genital herpes would likely meet the majority’s
standard for constitutional protection, but pharmacological treatment is
regularly advertised). This court, like the Matson dissent, is unpersuaded
by the majority’s dicta and finds the existence of advertisements irrelevant
to the inquiry regarding social stigma.
Moving defendants also contend that Momrow’s claim must fail
because he has not alleged that his confidential medical information
entered “the public sphere.” (Dkt. No. 6, Attach. 1 at 4.) As Momrow
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points out, this is not a requirement of the Fourteenth Amendment claim.
(Dkt. No. 13 at 8-10.) Unauthorized access and disclosure to other
employees will suffice. See Powell, 175 F.2d at 112; Makas v. Miraglia,
No. 05 Civ. 7180, 2007 WL 152092, at *9-10 (S.D.N.Y. Jan. 23, 2007),
report & recommendation adopted by 2007 WL 724603 (S.D.N.Y. Mar. 5,
2007), aff’d in relevant part, 300 F. App’x 9 (2d Cir. 2008).
In contrast to the lionshare of Second Circuit cases on this issue,
Momrow challenges executive rather than legislative action. (See
generally Am. Compl.) “To prevail when challenging executive action that
infringes a protected right, a plaintiff must show not just that the action was
literally arbitrary, but that it was ‘arbitrary in the constitutional sense.’”
O’Connor, 426 F.3d at 203 (quoting Collins v. City of Harker Heights, 503
U.S. 115, 128 (1992)). As such, “[m]ere irrationality is not enough: ‘only
the most egregious official conduct,’ conduct that ‘shocks the conscience,’
will subject the government to liability for a substantive due process
violation based on executive action.” Id. (quoting Cty. of Sacramento v.
Lewis, 523 U.S. 833, 846 (1998)). Although “[t]he shocks-the-conscience
test is necessarily imprecise,” the standard requires an inquiry into “the
state of mind of the government actor and the context in which the action
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was taken.” Id.
Momrow pleads that Sheriff Mahar personally accessed or directed
others to access his medical records without authorization and in violation
of the hospital’s policy. (Am. Compl. ¶ 13.) Momrow alleges that he was
intentionally targeted by Sheriff Mahar and his subordinates because he
was placed on sick abuse status. (Id.) These allegations sufficiently state
a claim that the County’s conduct shocked the conscience, and Momrow
sufficiently pleads the state of mind of Sheriff Mahar, Lieutenant Hetman,
and Young. See O’Connor, 426 F.3d at 203.
Additionally, the moving defendants dispute Momrow’s Monell and
supervisory liability claims. (Dkt. No. 6, Attach. 1 at 10-12.) Because
Momrow alleges direct personal involvement in unconstitutional conduct of
the County’s final policymakers, he necessarily states a claim for both
County and supervisory liability. See Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 694-95 (1978); Colon v. Couglin, 58 F.3d 865, 873 (2d Cir.
1995). Finally, moving defendants oppose Momrow’s request prayer for
punitive damages. (Dkt. No. 6, Attach. 1 at 12.) It is, however, premature
to discuss the availability of these damages on a motion to dismiss. The
court has also considered and rejected the moving defendants’ remaining
15

arguments. (Dkt. No. 6, Attach. 1 at 7-10.)
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the moving defendants’ motion to dismiss (Dkt.
No. 6) is DENIED; and it is further
ORDERED that the parties contact Magistrate Judge Daniel Stewart
to schedule further proceedings consistent with this MemorandumDecision and Order; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
March 30, 2016
Albany, New York

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