Schoolcraft v. The City Of New York et al

Filing 295

DECLARATION of Gregory J. Radomisli in Opposition re: 290 MOTION to Amend/Correct .. Document filed by Jamaica Hospital Medical Center. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C part 1, # 4 Exhibit Exhibit C part 2, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit E part 1, # 7 Exhibit Exhibit E part 2, # 8 Exhibit Exhibit E part 3, # 9 Exhibit Exhibit F, # 10 Exhibit Exhibit G, # 11 Exhibit Exhibit H, # 12 Exhibit Exhibit I, # 13 Exhibit Exhibit J, # 14 Exhibit Exhibit K, # 15 Exhibit Exhibit L, # 16 Exhibit Exhibit M, # 17 Exhibit Exhibit N, # 18 Exhibit Exhibit O, # 19 Exhibit Exhibit P, # 20 Exhibit Exhibit Q, # 21 Exhibit Exhibit R, # 22 Exhibit Exhibit S, # 23 Exhibit Exhibit T, # 24 Exhibit Exhibit U, # 25 Exhibit Exhibit V, # 26 Exhibit Exhibit X)(Osterman, Brian)

Case 1:10-cv-06005-RWS Document 27 Filed 10/12/10 Page 1 of 20

GJR/DA
667-82153

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------- --------------------------- ------ ---------------- ------- - - )(

DRIAN SCHOOLCRAFT,
Plaintiff,

-against10 CIV 6005 (RWS)

THE CITY OF NEW YORK, DEPUTY CHIEF
MICHAEL MARINO, Tax Id. 873220, Individually
and in his Official Capacity, ASSISTANT CHIEF

PATROL BOROUGH BROOKLYN NORTH
GERALD NELSON, Tax Id. 912370, Individually and

in his Official Capacity, DEPUTY INSPECTOR
STEVEN MAURIELLO, Tax Id. 895117, Individually
and in his Official Capacity CAPTAIN THEODORE

LAUTERBORN, Tax Id. 897840, Individually and in
his Official Capacity, LIEUTENANT JOSEPH GOFF,

Tax Id. 894025, Individually and in his Official
Capacity, SGT. FREDERICK SAWYER, Shield No.

2576, Individually and in his Official Capacity,

SERGEANT KURT DUNCAN, Shield No. 2483,
Individually and in his Official Capacity,
LIEUTENANT CHRISTOPHER BROSCHART, Tax

Id. 915354, Individually and in his Official Capacity,

LIEUTENANT TIMOTHY CAUGHEY, Tax Id.
885374, Individually and in his Official Capacity,
SERGEANT SHANTEL JAMES, Shield No. 3004,
AND P.O.'s "JOHN DOE" #1-50, Individually and in

their Official Capacity (the name John Doe being
fictitious, as the true names are presently unknown)
(collectively referred to as "NYlD defendants"),
JAMAICA HOSPITAL MEDICAL CENTER, DR.

ISAK ISAKOV, Individually and in his Official
Capacity, DR. LILIAN ALDANA-BERNIER,
Individually and in her Official Capacity and

JAMAICA HOSPITAL MEDICAL CENTER
EMPLOYEE'S "JOHN DOE" # 1-50, Individually and

in their Official Capacity (the name John Doe being
fictitious, as the true names are presently unknown),
Defendants.
---- ---- --- --- -------------------- ----------------- ------- ----------- )(

MEMORANDUM OF LAW
IN SUPPORT OF MOTION TO DISMISS
BY DEFENDANT JAMAICA HOSPITAL MEDICAL CENTER
Of

Counsel: Gregory J. Radomisli (2670)

1506416_L.DOC

Case 1:10-cv-06005-RWS Document 27 Filed 10/12/10 Page 2 of 20

TABLE OF CONTENTS
ABLE OF AUTHORITIES ........................................................................................................ iii
RELIMINARY STATEMENT .................................................................................................. 1

ROCEDURAL HISTORY ......................................................................................................... 1
LAINTIFF'S AMENDED COMPLAINT ................................................................................. 1

RGUMENT................................................................................................................................2
POINT

I

PLAINTIFF CANNOT MAINTAIN CLAIMS
AGAINST JAMAICA HOSPITAL BASED UPON
THE DOCTRINE OF RESPONDEAT SUPERIOR ......................................................... 2
POINT

II

PLAINTIFF CANNOT MAINTAIN CLAIMS FOR
CIVIL RIGHTS VIOLATIONS AGAINST JAMAICA
HOSPITAL BECAUSE IT IS NOT A STATE ACTOR ....... ...................... ..... ........ ....... 4
1. General Principles for Liability Under § 1983 .................... ....... ...... ......... 4

A. Defendants' actions do not pass the state
compulsion test............... .'............................................................. 6
B. Defendants' actions do not pass the public

function test.. ................................................................................ 7
C. Plaintiffs Amended Complaint does not sufficiently

plead joint action/close nexus....................................................... 8
2. General Principles for Failure to State a Cause

of Action...................................................................................................9
3. Plaintiffs Allegations Are Insufficient Under

Iqbal and Twombly ................................................................................... 10

POINT III
THE COURT SHOULD DECLINE TO E2CERCISE
SUPPLEMENTAL JURISDICTION OVER
PLAINTIFF'S STATE LAW CLAIM ............................................................................. 14
ONCLUSION .......... ...................... .......... ..... ......... ................................. ................ ........ ........... 15

506416JDOC

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Case 1:10-cv-06005-RWS Document 27 Filed 10/12/10 Page 3 of 20

TABLE OF AUTHORITIES

ases
merican Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 119 S.Ct. 977 (1999) ..............................................................................................5

mo/a v. Bronx-Lebanon Hosp. Ctr.,
2006 WL 3316278 (S.D.N.Y. 2006) ...........................................................................................5

shcroft v. Iqbal,
_U.S. _' 129 S.Ct. 1937 (2009) ...............................................................................................9

aylis v. Marriott Corp.,
843 F.2d 658 (2d Cir. 1988).......................................................................................................14
ell Atlantic Corp. v. Twombly,
550 U.S. 544, 127 S.Ct. 1955 (2007) ....................................................................................9, 10

lum v. Yaretsky,
457 U.S. 991, 102 S.Ct. 2777 (1982) ......................................................................................6, 8

odek v. Bunis,
2007 WL 1526423 (W.D.N.Y. 2007)..................................................................................11, 12
rentwood A

cad. v. Tenn. Secondary Sch. Ath. Ass 'n,

531 U.S. 288 (2001) ....................................................................................................................6
iambriello v. County o/Nassau,

292 F.3d 307 (2d Cir. 2002) ............................................................................................5, 11, 12
ahlberg v. Becker,

748 F.2d 85 (2d Cir. 1984) ........................................................................................................12

oe v. Harrison,
254 F.Supp.2d 338 (S.D.N.Y. 2003) ...................................................................................5, 7, 8
ove v. City o/New York,

2005 U.S.Dist.LE)(IS 22178 (S.D.N.Y. 2005) .......................................................................3, 4
ove v. Fordham University,
56 F.Supp.2d 330 (S.D.N.Y. 1999) .............................................................................................4

ares v. New York,

985 F.2d 94 (2d Cir. 1993) ........................................................................................................11
isk v. Letterman,

401 F.Supp.2d 362 (S.D.N.Y. 2005) .....................................................................................3, 11
lagg Bros., Inc. v. Brooks,

436 U.S. 149,98 S.Ct. 1729 (1978) ............................................................................................4
orbe's v. City o/New York,
2008 WL 3539936 (S.D.N.Y. 2008) .........................................................................................13
arcia v. Senkowski,

919 F.Supp. 609 (N.D.N.Y. 1996). .............................................................................................3
506416JDOC ii

Case 1:10-cv-06005-RWS Document 27 Filed 10/12/10 Page 4 of 20

insberg v. Healey Car & Truck Leasing, Inc.,

198 F.3d 268 (2d Cir. 1999) ......................................................................................................13
arvey v. Harvey,
949 F.2d 1127 (lIth Cir. 1992)...................................................................................................8

ackson v. Metropolitan Edison Co.,
419 U.S. 345,95 S.Ct. 449 (1974) ....................................................................................7, 8, 11

ohns v. Home Depot u.s.A., Inc.,
221 F.R.D. 400 (S.D.N.Y. 2004)...............................................................................................12
ohnson v. Columbia University,

2003 U.S.Dist.LE)(IS 20932 (S.D.N.Y. 2003) .......................................................................3, 8
outhe v. City of

New York,

2009 WL 701110 (E.D.N.Y. 2009) .............................................................................................3
olari v. New York Presbyterian Hospital,

455 F.3d 118 (2d Cir. 2006) ......................................................................................................14
oulkina v. City of

New York,

559 F.Supp.2d 300 (S.D.N.Y. 2008) ...................................................................................10, 11
ewis v. Krymkevich,
2009 U.S.Dist.LEXIS 117713 (S.D.N.Y. 2009) .......................................................................11
uciano v. City of

New York,

684 F.Supp.2d 417 (S.D.N.Y. 2010) .....................................................................................9, 14
elnitzky v. HSBC Bank USA,

2007 WL1159639 (S.D.N.Y. 2007) ..........................................................................................14
iddleton v. City of

New York,

2006 WL 1720400 (E.D.N.Y. 2006) .........................................................................................12
orse v. University of Vermont.,

973 F.2d 122 (2d Cir. 1992) ......................................................................................................14
kunieff v. Rosenberg,

996 F.Supp. 343 (S.D.N.Y. 1998) .......................................................................................5,6,8
kunieff v. Rosenberg,
166 F.3d 507 (2d Cir. 1999) ........................................................................................................6
itchell v. Callan,

13 F.3d 545 (2d Cir. 1994) ..........................................................................................................4
ollack v. Nash,
58 F.Supp.2d294 (S.D.N.Y. 1999)...........................................................................................11
ichardson v. Goord,

347 F.3d 431 (2d Cir. 2003) ........................................................................................................2
igano v. County of Sullivan,

2007 WL1133280 (S.D.N.Y. 2007) ..........................................................................................14
506416JDOC iii

Case 1:10-cv-06005-RWS Document 27 Filed 10/12/10 Page 5 of 20

asscer v. Barrios-Paoli,
2008 WL 5215466 (S.D.N.Y. 2008) .........................................................................................11
West Hartford,

ipear v. Town of

954 F.2d 63 (2d Cir. 1992) ..........................................................................................................8
ipencer v. Lee,

864 F.2d 1376 (7th Cir. 1989).....................................................................................................7

'Ybalski v. Independent Group Home Living Program Inc.,

2008 WL 4570642 (2nd Cir. 2008) ..........................................................................................6, 8

'homas v. Roach,

165 F.3d 137 (2d Cir. 1999) ........................................................................................................4

ops Markets, Inc. v. Quality Markets, Inc.,
142 F.3d 90 (2d Cir.1998) ...................................................................................................14, 15
alez v. City of

New York,

2008 WL 5329974 (S.D.N.Y. 2008) ...................................................................................12, 13

azquez v. Combs,
2004 WL 2404224 (S.D.N.Y. 2004) .........................................................................................13
eloz v. New York,

339 F.Supp.2d 505 (S.D.N.Y. 2004) .......................................................................................2-3

ules
ule 12...............................................................................................................................1,3, 9, 12
ule 8...........................................................................................................................................1,9

506416_L.DOC

iv

Case 1:10-cv-06005-RWS Document 27 Filed 10/12/10 Page 6 of 20

PRELIMINARY STATEMENT
This Memorandum of Law is respectfully submitted on behalf of defendant JAMAICA

HOSPITAL MEDICAL CENTER in support of its motion for an Order dismissing plaintiffs

Complaint pursuant to Rules 8(a)(2), 12(b)(1), 12(b)(6) and 12(c) of the Federal Rules of Civil
Procedure because plaintiff cannot maintain this action against the moving defendant based upon

the doctrine of respondeat superior; or in the alternative, because the moving defendant was not
a state actor acting under color of law; declining to exercise supplemental jurisdiction over

plaintiffs State law claims, and such other and further relief as this Court deems just and proper.

PROCEDURAL mSTORY
Plaintiff filed a Summons and Complaint in the United States District Court, Southern

New York, on or about August 10,2010 (Exhibit "A"). Issue was joined by service

District of

and filing of a Verified Answer on behalf of defendant JAMAICA HOSPITAL MEDICAL
CENTER ("Jamaica Hospital") on September 7, 2010 (Exhibit "B"). On or about September 12,

2010, plaintiff filed an Amended Summons and Complaint (Exhibit "C"). On October 6, 2010,
Jamaica Hospital filed a Verified Answer to the Amended Complaint (Exhibit "D").

PLAINTIFF'S AMENDED COMPLAINT
In his Amended Complaint, plaintiff claims that several codefendant New York City

Police Officers ("the City defendants") unlawfully entered his home, forcibly removed him in
handcuffs, seized his personal affects and "had him admitted to Jamaica Hospital against his will,
under false and perjurious information that plaintiff was 'emotionally disturbed'" (i¡2, Exhibit
"C"). Plaintiff alleges that the codefendant police officers "conspired with Jamaica Hospital

Center personnel to have plaintiff involuntarily committed in its psychiatric ward" for 6 days in
1506416_L.DOC

Case 1:10-cv-06005-RWS Document 27 Filed 10/12/10 Page 7 of 20

an effort "to tarnish plaintiff s reputation" and to undermine his claims that there was widespread
corruption in the New York City Police Department ("NYlD") (i¡2, Exhibit "C").

Plaintiffs Amended Complaint asserts 10 claims for relief under Federal law and 8
claims for relief under State law. Of the 10 claims for relief under Federal law, the Seventh,

Eighth and Ninth Claims are specifically addressed to Jamaica Hospital (i¡i¡270-284, Exhibit
"C,,).1 Specifically, plaintiff alleges that the Jamaica Hospital physicians violated plaintiffs civil

New York

rights pursuant to 42 U.S.C. §1983 by involuntarily hospitalizing him in violation of

Mental Hygiene Law §9.39, thereby depriving plaintiff of his substantive and procedural due
the Constitution (i¡270-276, Exhibit

process rights as set forth in the 5th and 14th Amendments of

"C"); conspired with the NYlD to violate plaintiffs civil rights pursuant to 42 U.S.C. §1983
(i¡i¡277-282, Exhibit "C"); and violated his rights to due process pursuant to 42 U.S.C. §1983 by

involuntarily hospitalizing him without notice, hearing or an opportunity to be heard or to

challenge his confinement, in violation of the 5th and 14th Amendments of the Constitution
(i¡i¡283-284, Exhibit "C").

ARGUMENT
POINT

I

PLAINTIFF CANNOT MAINTAIN FEDERAL CLAIMS AGAINST JAMAICA
HOSPITAL BASED UPON THE DOCTRINE OF RESPONDEAT SUPERIOR
Plaintiffs Federal claims should be dismissed against Jamaica Hospital at the outset

because the doctrine of respondeat superior is inapplicable to § 1983 claims. See Richardson v.
Goord, 347 F.3d 431, 435 (2d Cir. 2003); Veloz v. New York, 339 F.Supp.2d 505,519 (S.D.N.Y.

To the extent that plaintiff may argue that the first through sixth claims for relief also apply to
Jamaica Hospital notwithstanding the language which implies that they are more properly directed against
the City defendants, those claims should be dismissed for the same reasons the seventh through ninth
claims should be dismissed, as discussed herein. Plaintiffs tenth claim for relief pertains to the City

defendants only.
1506416JDOC

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Case 1:10-cv-06005-RWS Document 27 Filed 10/12/10 Page 8 of 20

2004); Garcia v. Senkowski, 919 F.Supp. 609, 616 (N.D.N.Y. 1996). It is well-settled law "that

private employers are not liable under (§JI983 for the constitutional torts of their employees

unless the plaintiff proves that action pursuant to official policy of some nature caused the
constitutional tort." Jouthe v. City of New York, 2009 WL 701110 at *18 (E.D.N.Y. 2009)
(citation omitted); see also Johnson v. Columbia University, 2003 U.S.Dist.LE)(IS 20932 at *7

(S.D.N.Y. 2003) (a private employer will not be liable for the constitutional torts of its
employees under the doctrine of respondeat superior in actions brought pursuant to 42 USC
1983). Even if the codefendant attending psychiatrists were considered Jamaica Hospital

employees for the purposes of this motion, plaintiff has not alleged that they (or any other
Jamaica Hospital staff members) acted pursuant to an official policy to deprive the plaintiff of
his civil rights. Accordingly, plaintiff cannot maintain a § 1983 claim against Jamaica HospitaL.

In Jouthe v. City of New York, the Court dismissed the Complaint against Long Island
Jewish Hospital because plaintiffs did not allege that the Hospital maintained an unconstitutional
policy under which one of the named defendants acted to deprive plaintiff of a constitutional

right. In Johnson v. Columbia University, the Court dismissed the Complaint against Columbia

University pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure because plaintiff

had not alleged that Columbia had a policy, pattern or practice that caused the alleged injury.
See also Fisk v. Letterman, 401 F.Supp.2d 362 (S.D.N.Y. 2005) (dismissing §1983 claim against

corporate defendants where plaintiff failed to allege a policy of violating individuals' civil
rights). Similarly, the plaintiff

herein does not make that allegation.

The Court's discussion of vicarious liability in the context of involuntary hospitalization
in Dove v. City of

New York, 2005 U.S.Dist.LE)(IS 22178 (S.D.N.Y. 2005) is instructive. In that

case, the plaintiff claimed that his civil rights were violated when he was' involuntarily

hospitalized under the Mental Hygiene Law. Plaintiff alleged that various private entities
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Case 1:10-cv-06005-RWS Document 27 Filed 10/12/10 Page 9 of 20

conspired with the personnel at various state hospitals to have him committed as "punishment"

for his having filed a complaint against one of the defendants. Dove at *4. The private
defendants moved to dismiss the case. The Court noted that Section 1983 imposes liability on

defendants who personally deprive someone of a federal right or who personally causes such a

deprivation to occur. Dove at *8, citing Dove v. Fordham University, 56 F.Supp.2d 330, 336
(S.D.N.Y. 1999), aff'd sub nom. Dove v. Fordham University, 210 F.3d 354 (2d Cir. 2000). The
Court stated that it is "equally established that liability under Section 1983 may not be predicated
on a theory of respondeat superior or vicarious liability." Dove at *8, citing Dove v. Fordham

University, 56 F.Supp.2d 330, 336 (S.D.N.Y. 1999), aff'd sub nom. Dove v. O'Hare, 210 F.3d
354 (2d Cir. 2000). Acco:rdingly, plaintiff cannot maintain a §1983 claim against Jamaica

HospitaL.

POINT

II

PLAINTIFF CANNOT MAINTAIN CL~IMS FOR CIVIL RIGHTS VIOLATIONS
AGAINST JAMAICA HOSPITAL BECAUSE IT IS NOT A STATE ACTOR
In paragraph 13 of his Amended Complaint, plaintiff alleges that Jamaica Hospital is a
"privately owned hospital" (i¡13, Exhibit "C"). In its Answer, Jamaica Hospital did not deny that
allegation and, consequently, admitted it (Exhibit "B").
1. General Principles for Liability Under § 1983

Section 1983 does not create substantive rights, but provides a "procedure of redress for

the deprivation of rights established elsewhere." Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.
1999). In order to succeed on a cause of action under § 1983, a plaintiff must prove 1) that the
defendant was acting under color of state law and 2) that such conduct deprived the plaintiff of a

right, privilege or immunity guaranteed by the federal constitution or federal law. Flagg Bros.,
Inc. v. Brooks, 436 U.S. 149, 155,98 S.Ct. 1729 (1978); see also Pitchell v. Callan, 13 F.3d 545,

547 (2d Cir. 1994). Because the U.S. Constitution does not regulate private parties, a plaintiff

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Case 1:10-cv-06005-RWS Document 27 Filed 10/12/10 Page 10 of 20

claiming his constitutional rights have been violated must first establish that the challenged
conduct constitutes state action. Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir.

must allege that he was injured by either a

2002). To state a claim under §1983, then, a plaintiff

state actor or a private party acting under color of state law. Id. An act that is not performed

under color of law (i.e., merely private conduct) is not a violation of §1983 "no matter how
discriminatory or wrongful" the act may be. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

40, 119 S.Ct. 977 (1999). Plaintiff concedes in his Complaint that Jamaica Hospital is a private
institution, and never alleges that Jamaica Hospital acted under color oflaw (See Exhibit "C").

Generally, a private hospital and its employees are not considered state actors for §1983
purposes. See Amofa v. Bronx-Lebanon Hosp. Ctr., 2006 WL 3316278 at *4 (S.D.N.Y. 2006);

see also Okunieffv. Rosenberg, 996 F.Supp. 343 (S.D.N.Y. 1998), aff'd 166 F3d 507 (2d Cir.
1999) (§ 1 ~83 claims cannot be

brought against a private hospital or private physicians based

upon a patient's involuntary hospitalization pursuant to the Mental Hygiene Law); Doe v.

Harrison, 254 F.Supp.2d 338 (S.D.N.Y. 2003) .

Accordingly, unless plaintiff demonstrates state action, plaintiff cannot state a claim
against Jamaica Hospital for violation of his constitutional rights for "unlawfully and

involuntarily (confining) plaintiff' to Jamaica Hospital without his consent or "any lawful basis"
the Mental Hygiene Law by allegedly failing to

(i¡272, Exhibit "C"); for violating Section 9.39 of

perform the necessary tests to determine if the plaintiff warranted hospitalization (i¡273, Exhibit

"C"); for involuntarily hospitalizing the plaintiff "without justification" in violation of his

constitutional rights (i¡274, Exhibit "C"); or for depriving him of his liberty, and/or his
substantive and procedural due process rights (i¡i¡275, 276 and 282, Exhibit "C"). Consequently,

plaintiffs claims that the Jamaica Hospital staff violated his civil rights must be dismissed. See
OkuniejJ, supra.
1506416JDOC

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Case 1:10-cv-06005-RWS Document 27 Filed 10/12/10 Page 11 of 20

Under certain circumstances, however, the actions of a private entity can be attributable

to the state such that state action is imputed to the private party, which can then subject the
private party to liability under 42 USC 1983. Those circumstances exist when 1) the entity acts

pursuant to the "coercive power" of the state, or is "controlled" by the state ("the compulsion

test"); 2) when the state provides "significant encouragement" to the entity, the entity is a
"willful participant in joint activity with the (s)tate," or the entity's functions are "entwined"

with state policies ("the joint action" or "close nexus" test); or 3) when the entity "has been
delegated a public function by the (sJtate" (the "public function" test). Sybalski v. Independent

Group Home Living Program Inc., 2008 WL 4570642 (2nd Cir. 2008), *2, citing Brentwood
Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288, 296 (2001) (citations and internal
quotation marks omitted); Okuniejf, 996 F.Supp. at 348. Significantly, the United States Court

of Appeals for the Second Circuit has already held that under all three of those tests, involuntary

hospitalization by a private party, as in this case, does not convert private conduct into state
action for purposes of section 1983. See Okunieff v. Rosenberg, 166 F.3d 507 (2d Cir. 1999).

A. Defendants' actions do not pass the state compulsion test
Under the state compulsion test, a state can be held responsible for a private decision

"only when it has exercised coercive power or provided such significant encouragement, overt or
covert, that the choice must in law be deemed to be that of the State." Blum v. Yaretsky,457

U.S. 991, 1004, 102 S.Ct. 2777 (1982). In Blum, private nursing home officials discontinued

plaintiffs' Medicaid benefits because plaintiffs refused a transfer to another health care facility.

The Court found that the extensive New York State Social Service regulations did not
demonstrate that the State was responsible for the decision to discharge or transfer patients;
1506410,DOC

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Case 1:10-cv-06005-RWS Document 27 Filed 10/12/10 Page 12 of 20

instead, those decisions ultimately turned on medical judgments made by private physicians

according to professional standards not established by the State. Id. at 1008-09. Accordingly, the

Court held that the decision to transfer Medicaid patients to lower levels of care did not
constitute state action under Section 1983. Id. at 1012. As stated in Doe v. Harrison, 254
F.Supp.2d 338, 341 (S.D.N.Y. 2003), state action through state compulsion "requires actual
coercion by a state actor that impacts upon the private physician's decision-making."

According to the Aniended Complaint, plaintiff alleges that the codefendant NYlD
officers who transported the plaintiff to Jamaica Hospital "convinced" doctors to have him
involuntarily hospitalized by making "false" statements (i¡i¡165-170, Exhibit "C"). Similarly, in

i¡200, plaintiff alleges that the NYlD officers falsified evidence and submitted it to the Jamaica
Hospital staff "in an effort to silence, intimidate, threaten or otherwise deem plaintiff incredible

should the evidence of corruption and misconduct within plaintiff s possession ever surface"
(Exhibit "C"). Those allegations do not constitute coercion, but chicanery. Therefore, plaintiff
cannot legitimately argue that Jamaica Hospital can be considered a state actor pursuant to the
state compulsion test. See Doe v. Harrison, 254 F.Supp.2d at 342.

B. Defendants' actions do not pass the public function test
Under the public function test, the plaintiff must demonstrate that the private entity

assumed powers "traditionally exclusively reserved to the State." Jackson v. Metropolitan

Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449 (1974). History is extremely relevant regarding
whether a given activity was an exclusive sovereign function. Spencer v. Lee, 864 F.2d 1376,

1380-81 (7th Cir. 1989) (Historical analysis demonstrated that involuntary commitment was not
a traditional public function).

The Southern and Eastern District Courts of New York, as well as the Second Circuit
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Case 1:10-cv-06005-RWS Document 27 Filed 10/12/10 Page 13 of 20

the mentally ill in New York was not a

Court of Appeals, have held in various cases that care of

function that was "traditionally" and "exclusively" reserved by the state. See OkuniejJ, 996

F.Supp. at 353-55; Sybalski v. Independent Group Home Living Program Inc., 2007 WL
1202864 at *5 (E.D.N.Y. 2007), aff'd, 2008 WL 4570642 (2nd Cir. 2008); Doe v. Harrison, 254

F.Supp.2d 338, 343 (S.D.N.Y. 2003). Therefore, the defendants' actions cannot be attributed to
the state under the public function test.

C. Plaintiffs Complaint does not sufficiently plead joint action/close nexus

Under the joint action/close nexus test, a private individual can be deemed a state actor
when there is a sufficiently close nexus between the state and the challenged action of the private

individual so that the individual's action may be fairly attributed to the State. See Jackson v.

Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449 (l974). This requirement ensures that
constitutional standards are invoked only when the State is responsible for the specific conduct

of which the plaintiff complains. Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). Actions of a
private party satisfy the nexus test only when the state government jointly participates with the

private party to deprive the plaintiff of her constitutional rights. Harvey v. Harvey, 949 F.2d
1127,1131 (l1thCir. 1992).
Based upon plaintiffs allegations in the Eight and Tenth Claims for Relief, the only test
which could arguably be applied to establish state action is the "joint action" test. Plaintiff also
that Jamaica Hospital conspired with the NYlD

specifically alleges in the Ninth Claim for Relief

to violate his civil rights. As discussed in greater detail below, plaintiffs allegations are not

sufficient to establish state action on behalf of Jamaica Hospital, and therefore plaintiff cannot
state a claim for violation of

his civil rights. See e.g. Spear v. Town of

West Hartford, 954 F.2d

63,,68 (2d Cir. 1992); Johnson v. Columbia University, 2003 U.S.Dist.LE)(iS at *13.
1506416_L.DOC

8

Case 1:10-cv-06005-RWS Document 27 Filed 10/12/10 Page 14 of 20

2. General Principles for Failure to State a Cause of Action

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a pleading to contain a
"short and plain statement of the claim showing that the pleader is entitled to relief." A pleading
that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action

will not do." Bell Atlantic Corp. v. Twombly, 550 D.S. 544, 555, 127 S.Ct. 1955, 1965 (2007).
A Complaint will also not be sufficient to state a cause of action if it tenders "naked assertion( s)"

devoid of

"further factual enhancement." Ashcroft v. Iqbal, _U.S. at _' 129 S.Ct. 1937, 1949

(2009) (quoting Twombly, 550 U.S. at 557).

Although historically Courts were required to accept plaintiffs allegations as true when
deciding a motion to dismiss pursuant to Rule 12(b)(6) and failure to comply with Rule 8(a)(2),

the United States Supreme Court recently recognized in Iqbal that, "the tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."

_U.S. at _' 129 S.Ct. at 1949 (emphasis added). The Court is not required to accept as true "a
legal conclusion couched as a factual allegation." _ U.S. at _' 129 S.Ct. at 1250 (citing

Twombly, 550 U.S. at 555, 127 S.Ct. at 1965).
To the extent that a Complaint contains factual allegations that are not the equivalent of

legal conclusions, the Complaint must contain sufficient factual matter that, if accepted as true,
would state a claim that is "plausible on its face" if the Complaint is to survive a motion to
dismiss. 550 U.S. at 570, 127 S.Ct. at 1974. Pleadings that are no more than conclusions are not

entitled to the assumption of truth. Luciano v. City of New York, 684 F.Supp.2d 417, 419
(S.D.N.Y. 2010), quoting Ashcroft v. Iqbal, _ U.S. at -! 129 S.Ct. at 1950. The Supreme Court

defined plausibility as follows:

A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged. The plausibility standard is not akin to a
"probability requirement," but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads facts that are

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"merely consistent with" a defendant's liability, it "stops short of the line
between possibility and plausibility of 'entitlement to relief. ,,,

must allege "enough to raise a

Iqbal_U.S. at -' 129 S.Ct. at 1949 (citations omitted). Plaintiff

right to relief above the speculative leveL." Twombly, _ U.S. at _' 127 S.Ct. at 1965.

3. Plaintiffs Allegations Are Insufficient Under Iqbal and Twombly

The following allegations in plaintiffs Amended Complaint are relevant to determine
whether plaintiff has adequately pled "joint action" or a conspiracy to violate plaintiffs .civil
rights:

"201. (T)he NYlD defendants maintained contact with (Jamaica
Hospital) for the six (6) days to ensure that plaintiff. . . remained at the
hospital, and did so for the sole purpose of ensuring that (Jamaica

Hospital) continued to detain plaintiff.

202. In fact, when questioned by plaintiff about his release date,
defendant ISAKOV responded that he "WANTED TO HEAR FROM
THE (POLICE) DEPARTMENT FIRST" before he could answer that
question and tell plaintiff when he would be released (emphasis original).

203. In allowing the NYlD to dictate the medical policy at
(Jamaica Hospital). . . (Jamaica Hospital) departed from good and

accepted medical practice by unlawfully and involuntarily confining
plaintiff for six days.

204. Additionally, defendant (Jamaica Hospital), in furtherance of

its agreement with NYlD officials, explicitly and/or tacitly formed an
agreement to involuntarily confine plaintiff despite objective medical
evidence mandating his release, as a 'favor' to defendant officers in
furtherance of their scheme to ultimately silence plaintiff and/or otherwise
impeach his credibility.

* * *

278. Defendants conspired and acted in concert to do whatever
was necessary, lawful or not, to cause the arrest, imprisonment, and
involuntary confinement of

plaintiff ADRIAN SCHOOLCRAFT."

Plaintiff s allegations are not sufficient to state a cause of action, particularly because a
complaint alleging a conspiracy to violate civil rights is held "to a heightened pleading

standards." Koulkina v. City of New York, 559 F.Supp.2d 300, 318 (S.D.N.Y. 2008), quoting
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Pollack v. Nash, 58 F.Supp.2d 294, 299 (S.D.N.Y. 1999). To state a claim for conspiracy, the
complaint must contain more than mere conclusory allegations. Koulkina, 559 F.Supp.2d at 318;
see also Dwares v. New York, 985 F.2d 94,99 (2d Cir. 1993).
Furthermore, to satisfy the joint action test while also adhering to the pleading

requirements of Iqbal and Twombly, the plaintiff must "submit factual evidence to demonstrate

'that the State had so far insinuated itself into a position of interdependence with (Jamaica
Hospital) that it was a joint participant in the enterprise." See Lewis v. Krymkevich, 2009

U.S.Dist.LE)(IS 117713 at *21-22 (S.D.N.Y. 2009), citing Jackson v. Metropolitan Edison Co.,
419 U.S. 345, 357-58, 95 S.Ct. 449 (l974). In addition, in this case, plaintiff

must also submit

factual evidence demonstrating that the NYlD was "so involved" in the Jamaica Hospital staffs
decision making "that it overrides a doctor's independent, medical judgment." Lewis, at *22.

In Sasscer v. Barrios-Paoli, 2008 WL 5215466 (S.D.N.Y. 2008), the plaintiff opposed
defendants' 12(b)(6) motion to dismiss by arguing, inter alia, that the private defendant and the
state actor "acted willfully in a joint fashion" to deprive the plaintiff of her constitutional rights.

2008 WL 5215466 at *6. The Court held that "plaintiffs conclusory assertion is insufficient to

allege a conspiracy" between the private and state actors. 2008 WL 5215466 at *6. See also
Ciambriello v. County of Nassau, 292 F.3d 307 (2d Cir. 2002) (a conclusory allegation that a
private entity acted in concert with a state actor does not suffice to state a § 1983 claim against

the private entity); Bodek v. Bunis, 2007 WL 1526423 (W.D.N.Y. 2007). Plaintiffs allegations
herein are equally conclusory.

Plaintiffs allegation that the NYPD police officers spoke with Jamaica Hospital
physicians about the plaintiff is insufficient to state a cause of action. See Fisk v. Letterman, 401

F.Supp.2d 362, 337 (S.D.N.Y. 2005) (communications between a private and a state actor,
without facts supporting a concerted effort or plan between the parties, are insufficient to make
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the private party a state actor); Johns v. Home Depot u.s.A., Inc., 221 F.R.D. 400, 404 (S.D.N.Y.

2004) (a private party who calls the police is not rendered a state actor even if the call caused
plaintiff to be detained). Significantly, that principle "holds true even where, as plaintiffs assert,
the statements or testimony is false." See Bodek v. Bunis, 2007 WL 1526423 at *7; Middleton v.
City of

New York, 2006 WL 1720400, *8 (E.D.N.Y. 2006).

Although plaintiff alleges that the NYlD police officers provided false information to the
Hospital physicians in order to precipitate his hospitalization, such action is not sufficient to
warrant state action. See Bodek v. Bunis, 2007 WL 1526423 at *7; Middleton v. City of New
York, 2006 WL 1720400, *8 (B.D.N.Y. 2006).
In Valez v. City of

New York, 2008 WL 5329974 (S.D.N.Y. 2008), the plaintiffs landlord

provided false information to the police, resulting in his arrest and ten-day confinement. The
plaintiff sued the City and his landlords, and the landlords moved to dismiss pursuant to Rule
12(b)(6) arguing, inter alia, that they were not acting under color of state law.
The Court granted the motion. The Court examined the Second Circuit decision in

Dahlberg v. Becker, 748 F.2d 85, 92 (2d Cir. 1984), which held that in cases finding joint

activity sufficient to support deeming private activity state action, the private actors and state
agents "carried out a deliberate, previously agreed upon plan," or their activity "constitute(d) a
conspiracy or meeting of the minds." Valez at *3. The Court noted that a Complaint which

merely alleged that the private actors acted in concert was not enough; a "meeting of the minds

or intent to conspire" was necessary. Valez at *3. See also Ciambriello v. County of Nassau"

292 F.3d at 324 ("a merely conclusory allegation that a private entity acted in concert with a state

actor is not sufficient to state a § 1983 claim against the private entity"). Furthermore, providing
false information to a police officer is also not sufficient to state a claim against a private party

under §1983. Valez at *3. Even if a complainant may "stand to benefit" from an officer's
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actions, "without proof of a 'plan, prearrangement, conspiracy, custom or policy' between the
complainant and law enforcement authorities, the complainant is not acting under color of state
law." Valez at *3 (emphasis added) (citing Ginsberg v. Healey Car & Truck Leasing, Inc., 198

F.3d 268,272-73 (2d Cir. 1999)).

The Court dismissed plaintiffs complaint in Valez because the plaintiff had not alleged
any facts suggesting that the private defendants and the police had a "meeting of the minds" or
"intent to conspire," notwithstanding the allegation in the Complaint that the defendants

"conspired among themselves." Valez at *3. The Court found that plaintiffs allegations were

not sufficient to make a plausible claim that they undertook the joint activity with the police
required to state such a claim. Valez at *3. The Court also rejected the additional allegation in

plaintiffs Affidavit stating that the defendants "worked closely with the police" as too
conclusory to allege the level of joint participation required to find that the private defendants
acted under color of state law. Valez at *3.

Similarly, in Vazquez v. Combs, 2004 WL 2404224 at *5 (S.D.N.Y. 2004), the Court

noted that plaintiffs allegations of joint participation or a conspiracy were insufficient to state a
èause of action because

Plaintiff here points to no relationship between the private defendants and
(the police officer), no statements made by the private defendants that they
had special connections with the police or that they could use the police to
pursue their private ends.
In other words, "(t)he entire nature of the relationship between the state and the

individual alleged to be a state actor-not merely the outward manifestations of that

relationship-is to be considered." Forbes v. City of New York, 2008 WL 3539936 at *5
(S.D.N.Y. 2008). Under that analysis, plaintiffs Federal claims should be dismissed.

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Case 1:10-cv-06005-RWS Document 27 Filed 10/12/10 Page 19 of 20

POINT

III

THE COURT SHOULD DECLINE TO EXERCISE SUPPLEMENTAL

JURISDICTION OVER PLAINTIFF'S STATE LAW CLAIM
If this Court dismisses the plaintiffs federal claims against Jamaica Hospital, it should
ecline to exercise supplemental jurisdiction over the plaintiff s state law claims in accordance
ith 28 U.S.c. § 1367(a) and (c)(3).
28 U.S.C. § 1367(a) provides in part:
Except as provide in subsections (b) and (c) or as expressly provided otherwise by

Federal Statute, in any civil action of which the district courts have original jurisdiction,
the district courts shall have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that they form part of the

same case or controversy. .. the Court may decline to exercise supplemental jurisdiction.

In Baylis v. Marriott Corp., 843 F.2d 658 (2d Cir. 1988), the Second Circuit stated that
hen all bases for federal jurisdiction have been eliminated, the federal court should dismiss the

tate claims. See also Tops Markets, Inc. v. Quality Markets, Inc., 142 F3d 90, 103 (2d Cir.
998); Morse v. University of

Vermont, 973 F.2d 122, 127-28 (2d Cir. 1992); Rigano v. County

if Sullivan, 2007 WLI133280 (S.D.N.Y. 2007) (declining to exercise supplemental jurisdiction

ver the state law claims after the Court determined that none of the plaintiff s federal claims
ere sufficient to survive summary judgment); Melnitzky v. HSBC Bank USA, 2007 WL1159639

S.D.N.Y. 2007) (declining to exercise supplemental jurisdiction over remaining state claims
here pro-se plaintiffs §1983 and §1985 federal claims were dismissed); Luciano v. City of

New

ork, 684 F.Supp.2d 417,422 (S.D.N.Y. 2010).

The Second Circuit Court of Appeals has upheld District Courts' decisions declining to
xercise supplemental jurisdiction over state claims after dismissing claims over which the court

ould otherwise have original jurisdiction. See Kolari v. New York Presbyterian Hospital, 455
3d 118 (2d Cir. 2006) (affirming the United States District Court, Southern District of

New

ork's decision to decline the exercise of supplemental jurisdiction where plaintiff s federal law

506416JDOC 14

laims were eliminated on a motion to dismiss); Tops Markets, Inc. v. Quality Markets, Inc., 142

Case 1:10-cv-06005-RWS Document 27 Filed 10/12/10 Page 20 of 20

.3d 90 (2d Cir.1998) (affirming the United States District Court, Western District of New
ork's refusal to exercise supplemental

jurisdiction over plaintiffs state law claims).

If this Court dismisses plaintiff s federal claims, then it is respectfully requested that this
ourt decline to exercise supplemental jurisdiction over the plaintiff's state law claims and
ismiss those claims as welL.

CONCLUSION

For the foregoing reasons, it is respectfully requested that this Court grant defendant's

otion and dismiss the Complaint as to JAMAICA HOSPITAL MEDICAL CENTER in its
ntirety, together with such other and further relief as this Court deems just and proper.

ated: New York, New York
October 12,2010

Respectfully submitted,.
MARTIN CLEARWATER & BELL LLP

BY:~W/
Ú;Ø; /~

Gregory J. Radomisli (GJR 2670)
Attorneys fur Derendant
JAMAICA HOSPITAL MEDICAL CENTER
220 East 42nd Street
New York, NY 10017

[phone]

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