Momrow v. The County of Rensselaer et al

Filing 96

MEMORANDUM-DECISION and ORDER - That McLean's 72 motion for summary judgment is GRANTED. That Young's 69 motion for summary judgment is DENIED. That Mahar and the County's 68 motion for summary judgment is GRANTED IN PART and DENIED IN PART as follows: DENIED as it relates to Momrow's Section 1983 claim against the County; and GRANTED in all other respects. That the Clerk terminate McLean and Mahar as parties to this action. That this action is deemed trial ready and scheduling order shall issue in due course. Signed by Senior Judge Gary L. Sharpe on 11/7/2018. (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 West Plaza - Suite 109
Albany, NY 12205
FOR THE DEFENDANTS:
The County of Rensselaer
& Jack Mahar
Carter, Conboy Law Firm
20 Corporate Woods Boulevard
Albany, NY 12211

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

JAMES A. RESILA, ESQ.

Elaine Young
Luibrand Law Firm, PLLC
950 New Loudon Road
Latham, NY 12110

KEVIN A. LUIBRAND, ESQ.

Clifford McLean
Martin, Rayhill Law Firm
421 Broad Street
Utica, NY 13501

KEVIN G. MARTIN, ESQ.

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Charles Momrow commenced this action pursuant to 42
U.S.C. § 1983 against defendant the County of Rensselaer, the County
Sheriff, and employees of the County jail based on an alleged violation of
his privacy rights under the Due Process Clause of the Fourteenth
Amendment. (Am. Compl., Dkt. No. 25.) Pending are defendants’ motions
for summary judgment. (Dkt. Nos. 68, 69, 72.)
II. Background
A.

Facts1
Defendant Elaine Young is a registered nurse employed by the

County and stationed at the County jail. (Def. Young’s Statement of
Material Facts (SMF) ¶¶ 2-3, Dkt. No. 69, Attach. 5.) In 2003, she entered
into an agreement with Samaritan Hospital that granted her access to its
electronic medical records system. (Pl.’s SMF ¶¶ 1-2, Dkt. No. 80.) The
agreement was designed to allow Young to use the system for the limited
1

Unless otherwise noted, the facts are undisputed.

2

purposes of “providing medical treatment to [a] patient,” “securing payment
for treatment of [a] patient,” and “quality assurance activities, professional
competence review activities[,] and health care fraud or abuse detection.”
(Dkt. No. 81, Attach. 41.) For all other purposes, she needed patient
authorization or Samaritan’s approval. (Id.) The County jail installed a
system on three of its computers that facilitated access to Samaritan’s
medical records. (Def. Young’s SMF ¶ 4; Dkt. No. 81, Attach. 12 at 18.)
Young allowed other employees to access the system using her password,
which she taped to the inside of a desk drawer in the nursing office. (Def.
Young’s SMF ¶¶ 5-9.) As such, other nurses and corrections officers had
access to the system via Young’s credentials. (Dkt. No. 81, Attach. 12 at
9, 19.)
Defendant Jack Mahar was the County Sheriff at all times relevant to
this action. (Dkt. No. 81, Attach. 9 at 30.) In 2004, Mahar helped institute
a policy in an effort to trim the excessive use of sick leave by the County
Sheriff’s Department employees. (Id. at 34.) Under the policy, if
employees reached a threshold number of sick leave days,2 they were

2

It is unclear from the record what this threshold number was.

3

placed on sick leave monitoring.3 (Id. at 41, 50-51.) Employees on sick
leave monitoring lost incentives if they continued to take excessive sick
leave,4 including “the ability to switch their shift, work favorable positions,
and work overtime.” (Pl.’s SMF ¶ 55; Dkt. No. 81, Attach. 9 at 38-39, 41.)
In addition, employees taking sick leave were required to notify Mahar’s
assistant, who maintained a list that tracked employees’ sick leave, and
they had to submit a doctor’s note upon returning to work. (Dkt. No. 81,
Attach. 9 at 36-37, 49.) Mahar’s command staff also tracked employees’
use of sick time and reported back to him. (Id. at 34-35.)
Momrow worked for the Department as a maintenance mechanic at
the County jail. (Def. McLean’s SMF ¶ 1, Dkt. No. 72, Attach. 10.) He
testified that he had a good relationship with Mahar. (Def. County’s SMF
¶¶ 9, 15, Dkt. No. 68, Attach. 8.) Defendant Clifford McLean, the
Superintendent of Building Maintenance at the County jail, was Momrow’s
supervisor. (Def. McLean’s SMF ¶¶ 3-4.) Although Momrow claimed he
had a poor relationship with McLean, he never complained to anyone
about McLean. (Id. ¶¶ 2, 7, 10-11.) During the time that they worked
3

Momrow refers to an employee’s placement on sick leave monitoring as “sick abuse status.”
(Pl.’s SMF ¶ 55.)
4

Again, it is unclear from the record what this threshold number was.

4

together, McLean never disciplined Momrow, denied him any time off,
placed him on sick leave monitoring, or wrote him up. (Id. ¶ 6.) The two
frequently ate lunch together, and McLean testified that he had no problem
with Momrow. (Id. ¶¶ 5, 9.)
In January 2010, Momrow took sick leave and notified Mahar’s
assistant that he would be absent. (Dkt. No. 68, Attach. 2 at 40; Def.
McLean’s SMF ¶ 16.) Momrow was admitted to Samaritan for
approximately ten days. (Dkt. No. 68, Attach. 2 at 40.) Eventually
Momrow returned to work for “[m]aybe a couple of months” but ultimately
retired in December 2010. (Id. at 41-42.) There is no evidence that
Momrow was taking excessive sick leave days so as to be placed on sick
leave monitoring in January 2010,5 (see generally Dkt. No. 80), and it is
undisputed that he was never denied any sick leave or other injury-related
benefits, (Def. County’s SMF ¶ 6).
According to Young’s testimony, on an unidentified date, McLean
asked her “to see if [Momrow] was admitted.” (Dkt. No. 81, Attach. 12 at
15.) Young testified that she then accessed Momrow’s medical records

5

Mahar testified that employees placed on sick leave monitoring were notified. (Dkt. No. 81,
Attach. 9 at 41.) Momrow does not recall being placed on sick leave monitoring. (Dkt. No. 68, Attach. 2
at 40.)

5

from Samaritan solely to determine whether he had been admitted to the
hospital so that McLean could get coverage for him if necessary. (Id. at
13.) She also testified that Mahar did not direct her to access Momrow’s
medical records. (Def. County’s SMF ¶ 28.)
McLean denies that he ever asked Young to look at Momrow’s
medical records. (Dkt. No. 72, Attach. 9 at 31.) He claims that he never
knew that there were computerized medical records that Young could
access. (Dkt. No. 72, Attach. 8 ¶¶ 6, 13.) Instead, McLean testified that
the extent of his knowledge regarding Momrow’s absences was that he
was notified that Momrow would be absent in January 2010 by Mahar’s
secretary. (Dkt. No. 72, Attach. 9 at 35.) Further, he testified that he was
unaware of the Department’s sick leave policy and that he and Mahar
never spoke about employees abusing sick leave. (Id. at 17, 19.)
However, it is undisputed that someone used Young’s account to
access Momrow’s medical records on January 11, January 14, and
January 21, 2010. (Pl.’s SMF ¶¶ 36-37; Def. Young’s SMF ¶¶ 10-11.) It is
also undisputed that, on at least one of these occasions, the user
accessed an array of Momrow’s medical records containing sensitive
information related to his mental health symptoms, treatment, and thoughts
6

of suicide. (Pl.’s SMF ¶¶ 40, 45.) The unauthorized access of Momrow’s
medical records coincided with numerous other unauthorized accesses
stemming from Young’s account at the County jail.6 (Id. ¶¶ 34-35.) In fact,
McLean’s records were also accessed without his authorization. (Def.
McLean’s SMF ¶¶ 33.)
Momrow did not learn that his medical records were accessed until
May 3, 2013. (Pl.’s SMF ¶ 49.) McLean, Mahar, and Young maintain that
they never learned of Momrow’s mental health issues from his medical
records. (Dkt. No. 72, Attach. 9 at 12, 38, 43; Dkt. No. 81, Attach. 9 at 9;
Attach. 12 at 14.)
B.

Procedural History
On April 29, 2015, Momrow filed a complaint against the County,

Mahar, David Hetman,7 and Young. (Compl., Dkt. No. 1.) On February 10,
2016, Momrow filed an amended complaint that added McLean based

6

Momrow asserts that “[n]umerous other employees’ records were accessed at the same time
they were on ‘sick abuse’ status and/or had taken an extended or unexpected sick leave.” (Pl.’s SMF
¶ 59.) However, the court does not consider this allegation because Momrow fails to support it with a
citation to the record. See N.D.N.Y. L.R. 7.1(a)(3). Additionally, the court does not consider anything
contained within the audit report generated by Samaritan because it cannot. Despite a court order to do
so, (Dkt. No. 95), Momrow failed to file this document, amongst others, with the court. Consequently, the
court does not consider any of the exhibits that Momrow purported to file under seal but never actually
filed. (Dkt. No. 81, Attachs. 19-22, 43-44.)
7

Momrow recently discontinued this action against Hetman. (Dkt. No. 94.)

7

upon revelations uncovered during a deposition in another action.
(Compare Dkt. No. 18, with Am. Compl.) On March 30, 2016, the court
denied defendants’ motions to dismiss. (Dkt. No. 31.)
Pending are defendants’ above-mentioned motions for summary
judgment. (Dkt. Nos. 68, 69, 72.) For the following reasons, McLean’s
motion is granted, (Dkt. No. 72), Young’s motion is denied, (Dkt. No. 69),
and the County and Mahar’s motion, (Dkt. No. 68), is granted in part and
denied in part.
III. Standard of Review
The standard of review pursuant to Rule 56 of the Federal Rules of
Civil Procedure is well established and will not be repeated here. For a full
discussion of the standard, the court refers the parties to its decision in
Wagner v. Swarts, 827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom.
Wagner v. Sprague, 489 F. App’x 500 (2d Cir. 2012).
IV. Discussion
A.

Statute of Limitations
First, Young argues that Momrow’s claim is barred by the statute of

limitations. (Dkt. No. 69, Attach. 4 at 4-5; Dkt. No. 88.) To be sure,
Momrow’s claim is governed by New York’s three-year statute of limitations
8

for personal injury actions and its tolling rules. See Connolly v. McCall,
254 F.3d 36, 40-41 (2d Cir. 2001). However, “[w]hile state law supplies the
statute of limitations for claims under § 1983, federal law determines when
a federal claim accrues.” Id. (internal quotation marks and citation
omitted); see Pearl v. City of Long Beach, 296 F.3d 76, 80-85 (2d Cir.
2002) (describing confusion between tolling and accrual of Section 1983
claims). “The claim accrues when the plaintiff knows or has reason to
know of the harm.” Connolly, 254 F.3d at 40-41 (internal quotation marks
and citation omitted).
It is undisputed that Momrow learned that his medical records were
accessed on May 3, 2013, (Pl.’s SMF ¶ 49), and Young does not argue
that Momrow had reason to know any earlier. As such, Momrow’s
complaint, which was filed on April 29, 2015, (Compl.), is timely.
B.

Substantive Due Process Analysis
“The Fourteenth Amendment’s due process clause . . . protects

individuals in this circuit from arbitrary intrusions into their medical
records.” Hancock v. County of Rensselaer, 882 F.3d 58, 65 (2d Cir.
2018). However, “[a] constitutional violation only occurs when the
individual’s interest in privacy outweighs the government’s interest in
9

breaching it.” Id. “When evaluating executive action that does not involve
penological interests, . . . [the court] ask[s] whether the action was so
‘arbitrary’ as to ‘shock the conscience,’” which “depends on the state of
mind of the government actor and the context in which the action was
taken.” Id. at 66 (internal quotation marks, footnote, and citation omitted).
“[O]nly the most egregious official conduct shocks our consciences—but
how egregious conduct has to be in order to be shocking depends on a
context-specific balancing.” Id. (internal quotation marks and citation
omitted). “Malicious invasions of privacy are constitutionally unacceptable
even in the face of weak individual privacy interests,” but “[s]tronger privacy
interests will be required to hold executive actors liable who acted with less
culpable mental states.” Id. (internal quotation marks and citations
omitted).
1.

Mahar

Mahar argues that the claim against him should be dismissed
because there is no evidence that he was personally involved in the
alleged constitutional violation. (Dkt. No. 68, Attach. 9 at 3-4.)
It is well settled in this Circuit that personal involvement of
defendants in alleged constitutional deprivations is a prerequisite
to an award of damages under § 1983. The personal involvement
10

of a supervisory defendant may be shown by evidence that: (1)
the defendant participated directly in the alleged constitutional
violation, (2) the defendant, after being informed of the violation
through a report or appeal, failed to remedy the wrong, (3) the
defendant created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance of
such a policy or custom, (4) the defendant was grossly negligent
in supervising subordinates who committed the wrongful acts, or
(5) the defendant exhibited deliberate indifference to the rights of
[the plaintiff] by failing to act on information indicating that
unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (internal quotation
marks and citations omitted). A generous reading of Momrow’s response8
reveals that his theories on Mahar’s personal involvement rely on the first
and third Colon criteria. (Dkt. No. 82 at 6, 11-13.) However, a careful
review of the record does not support either theory.
First, there is no evidence that Mahar directly participated in the
improper access of Momrow’s medical records. The only evidence in the
record of a supervisor directing a subordinate to access medical records
was Young’s testimony that McLean asked her to access Momrow’s
records. (Dkt. No. 81, Attach. 12 at 14-15.) Conversely, the record reveals
that Mahar did not prompt McLean to make this request, nor did he direct

8

Momrow fails to specify which of the Colon criteria Mahar satisfies. Instead, he conflates the
issues of personal involvement and municipal liability. (Dkt. No. 82 at 17-20.)

11

Young to access Momrow’s medical records. (Dkt. No. 72, Attach. 9 at 17,
19; Def. County’s SMF ¶ 28.) Second, Mahar had no motive to access
Momrow’s medical records: the two had a good relationship, (Def. County’s
SMF ¶¶ 9, 15), there is no evidence that Momrow took excessive sick leave
such that he was placed on sick leave monitoring, (see generally Dkt. No.
80), and Momrow was never denied any sick leave or injury-related
benefits, (Def. County’s SMF ¶ 6). To the extent Momrow attempts to link
Mahar to the alleged constitutional violation via the Department’s sick leave
policy, (Dkt. No. 82 at 6, 12-13), there is no evidence that this policy
included surreptitiously accessing employees’ medical records. Moreover,
Momrow fails to explain why this tactic would have been used when the
policy already required employees to verify their sick leave by providing a
doctor’s note upon returning to work. (Dkt. No. 81, Attach. 9 at 49.)
Given the lack of evidence in the record regarding Mahar’s
involvement, Momrow attempts to manufacture circumstantial evidence in
the form of Mahar’s propensity for engaging in misconduct, (Dkt. No. 82 at
13), the fact that Mahar did not bring criminal charges against Young, (id.
at 12), an allegation that Mahar tried to delay Samaritan from notifying
patients about the improper access, (id.), Lieutenant James Karam’s
12

opinion that Mahar was ultimately responsible for some of the unauthorized
accesses that occurred, (id. at 19), and a statement allegedly made by
Young, upon being served in an unrelated action, that “[t]he Sheriff does
his dirty work and I get screwed,” (id. at 11). Even assuming that all of
these allegations are true, a reasonable jury could not rely on them to infer
that Mahar bore responsibility for invading Momrow’s right to privacy.
First, Mahar’s alleged role in other acts of unrelated misconduct and
his decision not to bring criminal charges against Young are not material to
whether or not he was responsible for the unauthorized access of
Momrow’s medical records. Likewise, Momrow’s allegation that Mahar
wanted to delay Samaritan sending out notices in order to avoid
compromising an unrelated investigation into a non-party employee, (Dkt.
No. 81, Attach. 8 at 13-15), is also immaterial. Additionally, even if the
court were to credit Karam’s opinion, his testimony was clear that
unauthorized access of medical records occurred for a variety of
reasons––“[s]ome for family members and friends, I believe some for their
own personal knowledge . . ., and I believe that in some cases it was done
for time and attendance issues,” (Dkt. No. 81, Attach. 8 at 43)––and he
only attributed blame to Mahar when access occurred for time and
13

attendance issues, (id. at 43-44). Moreover, Karam’s opinion was informed
by his equivocal belief that he heard Mahar “talking in code” on an
unspecified occasion about “want[ing] something checked” in relation to a
non-party employee who was “taking a lot of sick time off.” (Id. at 44, 90.)
Karam’s speculative opinion does not support a reasonable inference that
Mahar was personally involved in accessing Momrow’s medical
records––especially in lieu of the absence of evidence that Momrow was
on sick leave monitoring. Lastly, Young’s alleged statement upon being
served in a separate action is so vague and attenuated that it could have
related to a wide array of conduct by Mahar.
As such, Momrow’s Section 1983 claim against Mahar is dismissed.
2.

McLean
McLean argues that the claim against him is barred by the doctrine of

qualified immunity. (Dkt. No. 72, Attach. 11 at 13-17.) The court agrees.
Even when examining the evidence in the light most favorable to Momrow,
it can only be reasonably inferred that McLean asked Young to access
Momrow’s medical records to determine if he was admitted to the hospital.
(Dkt. No. 81, Attach. 12 at 14-15.) At the time Momrow’s medical records
were accessed in January 2010, it was not clearly established that
14

individuals had “a constitutional right of privacy in medical conditions that
are not both serious and stigmatizing[.]”9 Hancock v. County of
Rensselaer, 1:13-CV-1184, 2018 WL 4119023 at *5 (N.D.N.Y. Aug. 29,
2018); see Powell v. Schriver, 175 F.3d 107, 111-12 (2d Cir. 1999); Doe v.
City of New York, 15 F.3d 264, 266-67 (2d Cir. 1994). Accordingly,
because Momrow fails to present evidence that his admission status was
serious or stigmatizing, his claim against McLean is barred by qualified
immunity.
3.

Young

Young argues that the claim should be dismissed against her
because she only accessed Momrow’s medical records, as opposed to
disclosing them. (Dkt. No. 69, Attach. 4 at 2-4.) However, the court is not
convinced that public disclosure is a necessary element of Momrow’s claim
in light of the Second Circuit’s recent holding that although “[p]ublic
disclosure . . . of medical information is a greater breach of privacy than
one unauthorized government employee viewing the information,” “even

9

However, because it can be reasonably inferred that Young, as a final policymaker, accessed
Momrow’s medical records relating to his severe depression, which were both serious and stigmatizing,
the County’s argument regarding qualified immunity, (Dkt. No. 68, Attach. 9 at 7-9), fails. See Hancock,
2018 WL 4119023 at *5; Powell, 175 F.3d at 111-12; Doe, 15 F.3d at 266-67.

15

the weakest privacy interests cannot be overridden by totally arbitrary or
outright malicious government action.” Hancock, 882 F.3d at 68. Young
does not even begin to argue that the government’s interest in accessing
Momrow’s medical records outweighed his privacy interest. And, on this
record, the court cannot say that Young’s actions were not totally arbitrary
in light of the less invasive means at her disposal. Moreover, it is of no
consequence that Young may not have intended to injure or spite Momrow
because “[g]overnment actors with specific duties of confidentiality or care
unreasonably invade privacy even if they do so as a result of ‘deliberate
indifference.’” Id. (internal citation omitted); see County of Sacramento v.
Lewis, 523 U.S. 833, 849-50 (1998). Accordingly, Momrow’s Section 1983
claim against Young survives.
4.

County

The County argues that it should be terminated as a party from this
action because there is no evidence of a policy or custom to establish
municipal liability. (Dkt. No. 68, Attach. 9 at 9-11; Dkt. No. 85, Attach. 1 at
2-4.) Momrow argues “[t]he actions of senior policymaker . . . Young, both
as it relates to . . . Momrow, and the pattern of prior and subsequent
improper accesses of other individual’s medical records, is sufficient to
16

establish municipal liability.” (Dkt. No. 82 at 19.)
A municipality may be liable under Section 1983 only “when
execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury.” Monell v. Dep’t of Soc. Servs. of City of
N.Y., 436 U.S. 658, 694 (1978). To establish a municipal policy or custom,
a plaintiff must demonstrate:
(1) the existence of a formal policy officially endorsed by the
municipality; (2) actions taken or decisions made by municipal
officials with final decision making authority, which caused the
alleged violation of plaintiff’s civil rights; (3) a practice so
persistent and widespread that it constitutes a custom of which
constructive knowledge can be implied on the part of the
policymaking officials; or (4) a failure by policymakers to properly
train or supervise their subordinates, amounting to deliberate
indifference to the rights of those who come in contact with the
municipal employees.
Layou v. Crews, No. 9:11–CV–114, 2013 WL 5494062, at *15 (N.D.N.Y.
Sept. 30, 2013) (internal quotation marks and citation omitted).
Here, there is evidence supporting Momrow’s assertion that “Young
was the chief policy maker for the medical unit, and was responsible for
implementing all medical policies and procedures, including policies
relating to the privacy of medical information.” (Compare Pl.’s SMF ¶ 76,

17

with Dkt. No. 81, Attach. 9 at 123.) Although the County purports to deny
this assertion, they do not provide a citation to the record to support their
denial. (Dkt. No. 85 at 25.) To be sure, the issue of whether an individual
is a final policymaker is determined by state and local law. See Jeffes v.
Barnes, 208 F.3d 49, 57-61 (2d Cir. 2000). However, although the burden
of demonstrating that Young was a final policymaker will ultimately rest with
Momrow, at this stage, the County has failed to show the absence of a
genuine issue of fact regarding her authority. See Perez v. County of
Rensselaer, New York, 1:14-cv-950, 2018 WL 3420014, at *10 n.34
(N.D.N.Y. July 13, 2018); Media All., Inc. v. Mirch, No. 1:09–CV–0659,
2011 WL 3328532, at *12 (N.D.N.Y. Aug. 2, 2011). Because more
information is needed before a determination can be made on this issue,
summary judgment is inappropriate. See id.; Capasso v. Metro. Transp.
Auth. of State of N.Y., 198 F. Supp. 2d 452, 464 (S.D.N.Y. 2002).
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that McLean’s motion for summary judgment (Dkt. No.
72) is GRANTED; and it is further
ORDERED that Young’s motion for summary judgment (Dkt. No. 69)
18

is DENIED; and it is further
ORDERED that Mahar and the County’s motion for summary
judgment (Dkt. No. 68) is GRANTED IN PART and DENIED IN PART as
follows:
DENIED as it relates to Momrow’s Section 1983 claim against
the County; and
GRANTED in all other respects; and it is further
ORDERED that the Clerk terminate McLean and Mahar as parties to
this action; and it is further
ORDERED that this action is deemed trial ready and a scheduling
order shall issue in due course; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
November 7, 2018
Albany, New York

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