Schoolcraft v. The City Of New York et al

Filing 296

MEMORANDUM OF LAW in Opposition re: 290 MOTION to Amend/Correct . . Document filed by Jamaica Hospital Medical Center. (Osterman, Brian)

GJR/DA
667-82153

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
X
ADRIAN 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 "NYPD 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.
•X
MEMORANDUM OF LAW
IN OPPOSITION TO PLAINTIFF’S MOTION
TO AMEND THE COMPLAINT

Of Counsel:

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Gregory J. Radomisli (GJR 2670)

TABLE OF CONTENTS
TABLE OF AUTHORITIES.........................................................................................................ii
PRELIMINARY STATEMENT................................................................................................... 1
PROCEDURAL HISTORY.......................................................................................................... 1
ARGUMENT
POINT I
PLAINTIFF HAS NOT DEMONSTRATED GOOD CAUSE
TO AMEND THE SCHEDULING ORDERS.............................................................................. 3
POINT II
PLAINTIFF’S COUNSEL CANNOT MEET
THE STANDARD FOR LEAVE TO AMEND
A.

General Principles..................................................................................... 6
1.

Undue Delay...................................................................................7

2.

Futility
a.

Plaintiffs Counsel Has Not Alleged the
Necessary Elements to State a Claim................................. 9

b.

Plaintiffs counsel does not have a
factual basis for his amendment........................................ 10
1. An official policy........................................................ 10
2. The direction of a policy maker.................................. 11
3. A widespread custom.................................................. 11

3.

Undue Prej udice............................................................................. 14

4.

Bad Faith.......................................................................................15

CONCLUSION.............................................................................................................................18

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1

TABLE OF AUTHORITIES
Cases

Amer. v. Town of West Harford,
361 F.3d 113,125 (2d Cir. 2004)...................................................................................................................................... 10,13
Barry v. New York City Police Dept.,
2004 U.S. Dist. LEXIS 5951 (S.D.N.Y. April 7, 2004)............................................................................................................. 13
Bernstein v. N.V. Nederlandsche-Amerikaansche Stoomvaart Maatschapij, 79 F.Supp. 38, 42 (S.D.N.Y. 1948)........ 16
Board of the County of Comm'rs of Bryan County v. Brown,
520 U.S. 397(1997).................................................................................................................................................................... 13
Green v. City of New York,
465 F.3d 65 (2d Cir. 2006)..........................................................................................................................................................12
Jeffes v. Barnes,
208 F.3d at 57....................................................................................................................................................................... 11,14
Parker v. Columbia Pictures Industries,
204 F.3d 326 (2d Cir. 2000)....................................................................................................................................3, 4, 5, 6, 15
Schoolcraft v. City of New York, 2011 U.S.Dist. LEXIS 48996, *17 (S.D.N.Y. May 5, 2011)........................8, 9,10,11,13
Sokol Holdings, Inc. v. BMB Munai, Inc., 2009 U.S.Dist. LEXIS 72659 (S.D.N.Y. August 14, 2009)....................................4
Soriucco v. New York City Police Department,
971 F.2d 864, 871 (2d Cir. 1992)............................................................................................................................................. 12
Warheit v. City of New York,
2006 U.S.Dist. LEXIS 58167 (S.D.N.Y. August 15, 2006)..................................................................................................... 14
Rules

12(b)(1)..................................................................................................................................................................................................1
12(c)....................................................................................................................................................................................................... 1
Anderson News, L.L.C. v. Am. Media, Inc., 680 F.2d 162 (2d Cir. 2012)................................................................................. 9
Ansam v. Assocs., Inc. v. Cola Petroleum Ltd., 760 F.2d 442, 446 (2d Cir. 1985)................................................................. 7
Beckett v. Incorporated Village of Freeport, 2014 U.S.Dist. LEXIS 45605, *13 (E.D.N.Y. March 31, 2014)..............4,14
Burch v. Pioneer Credit Recovery, Inc.,
551 F.3d 122,126 (2d Cir. 2008).........................................................................................................................................8, 10
Cresswell v. Sullivan & Cromwell,
922 F.2d 60, 72 (2d Cir. 1990)................................................................................................................................................... 8

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11

Dilworth v. Goldberg,
914 F.Supp.2d 433, 452 (S.D.N.Y. 2012)..................................................................................................................................9
Ho Myung Moolsan Co., Ltd. v. Manitou Mineral Water, Inc.,
665 F.Supp.2d 239, 262 (S.D.N.Y. 2009)............................................................................................................................... 15
Kassner v. 2nd Ave. Delicatessen, Inc.,
496 F.3d 229, 244 (2d Cir. 2007)...................................................................................................................................... 4, 5, 6
McCarthy v. Dun & Bradstreet Corp.,
482 F.3d 184, 200 (2d Cir. 2007)............................................................................................................................................... 7
Mina Inv. Holdings, Ltd. v. Lefkowitz,
184 F.R.D. 245, 247 (S.D.N.Y. 1999)..........................................................................................................................................9
NAS Elecs., Inc. v. Transtech Elecs. PTE Ltd., 262 F.Supp.2d 134,150 (S.D.N.Y. 2003)........................................................ 4
Rule 12(b)(6)........................................................................................................................................................................................ 9
Rule 15...................................................................................................................................................................................................6
Rule 15(a).............................................................................................................................................................................. 3, 4, 5,6
Rule 16.............................................................................................................................................................. 1, 2, 3, 4, 5, 6,14,15
Rule 16(b)................................................................................................................................................................................... 3, 4,5
Rule 16(b)(4)........................................................................................................................................................................................ 3
Rules 8(a)(2)........................................................................................................................................................................................ 1
Sanders v. Thrall Car Mfg. Co.,
582 F.Supp. 945, 952, aff'd 730 F.2d 910 (2d Cir. 1984)................................................................................................8,16
Shallow v. Scofield,
2012 U.S.Dist. LEXIS 135697 (S.D.N.Y. September 21, 2012)............................................................................................. 9
Strada v. City of New York,
(E.D.N.Y. 2014)............................................................................................................................................................................... 8
Tokio Marine & Fire Ins. Co. v. Employers Ins. Of Wausau,
768 F.2d 101,103 (2d Dir. 1986)............................................................................................................................................... 8
Williams v. Citigroup, Inc.,
659 F.3d 208 (2d Cir. 2011); McCarthy, 482 F.3d at 200...................................................................................................... 7
Zahra v. Town of Southold,
48 F.3d 674, 686 (2d Cir. 1995)...................................................................................................................................................7

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PRELIMINARY STATEMENT
This Memorandum of Law is respectfully submitted on behalf of defendant JAMAICA
HOSPITAL MEDICAL CENTER in opposition to plaintiffs motion for an Order amending the
Second Amended Complaint.

PROCEDURAL HISTORY
Plaintiff filed a Summons and Complaint in the United States District Court, Southern
District of New York, on or about August 10, 2010 (Exhibit “A”). Issue was joined by service
and filing of a Verified Answer on behalf of defendant JAMAICA HOSPITAL MEDICAL
CENTER (“Jamaica Hospital” or “JHMC”) 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”).
On October 12, 2010, Jamaica Hospital filed a motion to dismiss plaintiffs Amended
Complaint pursuant to Rules 8(a)(2), 12(b)(1), 12(b)(6) and 12(c) of the Federal Rules of Civil
Procedure with an accompanying Memorandum of Law (Exhibit “E”). On May 5, 2011, this
Court issued its Opinion on Jamaica Hospital’s motion, dismissing all federal claims against
Jamaica Hospital, finding that plaintiff failed to state a claim against JHMC pursuant to 42
U.S.C. §1983 (Exhibit “F”). This Court decided to exercise supplemental jurisdiction over the
plaintiffs state- law claims against Jamaica Hospital (Exhibit “F”).
On August 15, 2011, this Court issued an Order establishing March 30, 2012 as the
deadline to complete fact discovery (Exhibit “G”).

On October 5, 2011, this Court issued

another Order, establishing June 29, 2012 as the deadline to complete fact discovery (Exhibit
“H”). On February 9, 2012, the deadline to complete fact discovery was extended again to
September 12, 2012, and expert discovery was to be completed by November 1, 2012 (Exhibit
“I”). Significantly, the February 9, 2012 Rule 16 Scheduling Order specifically stated that “The

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parties shall file all motions, other than motions in limine, by this date. . . after which no
discovery will be conducted and no motion will be entertained without a showing of special
circumstances” (Exhibit “I,” emphasis added).
On April 25, 2012, plaintiffs counsel wrote to the Court requesting leave to amend the
Complaint to add a First Amendment retaliation claim under 42 U.S.C. §1983, which this Court
granted in part and denied in part by Order of June 14, 2012 (Exhibit “J”). On August 1, 2012,
plaintiffs counsel wrote to the Court again, requesting permission to amend the complaint to add
a prior restraint claim under 42 USC §1983 (Exhibit “K”). On September 10, 2012, this Court
granted in part and denied in part plaintiffs second motion to amend the Complaint (Exhibit
“L”).
On September 18, 2012, plaintiffs counsel wrote to the Court a third time, asking
permission to amend the Complaint again, to add Lt. Elise Hanlon as a defendant (Exhibit “M”).
This Court So-Ordered plaintiffs counsel’s letter (Exhibit “M”). As plaintiffs counsel noted in
that letter, two prior requests to amend the Complaint had already been made. Thus, as of
December 2014, when plaintiffs counsel made his motion, this Court had already permitted
plaintiff to amend the Complaint three times.

Moreover, plaintiffs counsel had the

opportunity to make a motion to amend the Complaint to re-instate the §1983 claims against
JHMC when he wrote his letters to the Court on April 25, 2012, August 1, 2012 and September
18, 2012 to amend the Complaint in other ways, but did not.
On September 21, 2012, the deadline to complete fact discovery was extended again to
January 12, 2013 (Exhibit “N”). Significantly, the Rule 16 Scheduling Order specifically stated
that “The parties shall file all motions, other than motions in limine, by this date. . . after which
no discovery will be conducted and no motion will be entertained without a showing of
special circumstances” (Exhibit “N,” emphasis added).
On October 1, 2012, plaintiff filed a Second Amended Complaint (Exhibit “O”).
Plaintiffs Second Amended Complaint specifically states that the Federal causes of action
alleged therein are not being asserted against Jamaica Hospital (Exhibit “O”, p. 43; fn. 1).

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2

On October 15, 2012, Jamaica Hospital filed a Verified Answer to the Second Amended
Complaint (Exhibit “P”).
Discovery has proceeded for the past two years. Notwithstanding prior deadlines, this
Court issued Orders extending the deadline to complete fact discovery again to December 6,
2013 (Exhibit “Q”), January 10, 2014 (Exhibit “R”), March 14, 2014 (Exhibit “S”), June 14,
2014 (Exhibit “T”) and July 18, 2014 (Exhibit “U”). Plaintiff’s counsel never requested that the
dates by which to file all motions, other than motions in limine, be extended. Even if he had,
using this Court’s prior Orders as a guide, that deadline would presumably have been July 18,
2014 (the cut-off for fact discovery) or October 9, 2014 (the cut-off for expert discovery).
On October 29, 2014, the Court ordered all summary judgment motions to be served by
December 22, 2014, and set a trial date of April 6, 2015 (Exhibit “V”). On December 4, 2014,
two weeks before dispositive motions were due, plaintiffs counsel served the current motion to
amend the Complaint—essentially for the fourth time.
ARGUMENT
POINT I
PLAINTIFF HAS NOT DEMONSTRATED GOOD CAUSE
TO AMEND THE SCHEDULING ORDERS
According to Rule 16(b)(3) of the Federal Rules of Civil Procedure, the Court “must issue
a scheduling order” which “must limit the time to join other parties [and] amend the pleadings”
(emphasis added). Rule 16(b)(4) states that scheduling orders may be modified, “only for good
cause.” Therefore, when a plaintiff seeks leave to amend a Complaint pursuant to Rule 15(a)
after the deadline to amend the pleadings has expired, he must first demonstrate “good cause.”
Parker v. Columbia Pictures Industries, 204 F.3d 326 (2d Cir. 2000) (finding that the “good
cause” standard, rather than the more liberal standard of Rule 15(a) governs a motion to amend
filed after the deadline to amend the pleadings has expired); Beckett v. Incorporated Village of

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Freeport, 2014 U.S.Dist. LEXIS 45605, *13 (E.D.N.Y. March 31, 2014).
“Good cause” exists if the Court determines that a deadline could not be met, despite the
diligence of the party seeking to extend the deadline. Id.-, Parker, 204 F.3d at 339-340. In those
cases where a deadline could not be met despite due diligence, the Court may grant leave to
amend the scheduling order to extend the deadline. See Beckett, 2014 U.S.Dist. LEXIS at *14;
Parker, 204 F.3d at 339-340.
“Good cause” depends upon “the diligence of the moving party, and, to satisfy the
standard, the movant must demonstrate that it has been diligent in its effort to meet the Court’s
deadlines.”

Id.-, Sokol Holdings, Inc. v. BMB Munai, Inc., 2009 U.S.Dist. LEXIS 72659

(S.D.N.Y. August 14, 2009). As the Court stated in Sokol, “The party must show that, despite its
having exercised diligence, the applicable deadline could not reasonably have been met.” Sokol
Holdings, Inc. v. BMB Munai, Inc., 2009 U.S.Dist. LEXIS 100478, *24 (S.D.N.Y. October 27,
2009).
Significantly, while not the only consideration, the “primary consideration” to determine
if good cause exists is whether the moving party can demonstrate diligence. Beckett, 2014
U.S.Dist. LEXIS at *15; Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 244 (2d Cir.
2007); see also Parker v. Columbia Pictures Industries, supra. It is only after plaintiff has
established “good cause” to modify the scheduling order under Rule 16(b)(4) that the Court may
consider if plaintiff satisfied the requirements of Rule 15(a). Beckett, 2014 U.S.Dist. LEXIS at
*15; Sokol, 2009 U.S.Dist. LEXIS 100478 at *16 (“The standards of Rule 16(b) must be met
first, and cannot ‘be short circuited by an appeal to those of Rule 15’”) (emphasis original,
citations and quotations omitted); see also NAS Elecs., Inc. v. Transtech Elecs. PTE Ltd, 262
F.Supp.2d 134, 150 (S.D.N.Y. 2003) (“Before leave is granted [pursuant to Rule 15(a)], amotion

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to amend the pleading must satisfy the terms of [the] Court’s scheduling order”).
The Second Circuit’s decisions in Parker and Kassner demonstrate the relationship
between Rules 16 and 15, and the significance of demonstrating “good cause” to amend a
Scheduling Order before considering a motion to amend the Complaint. In Parker, the plaintiff
moved to amend the complaint after the deadline to amend pleadings had expired. The Court
stated that it was the first occasion the Second Circuit had to “balance” the “freely granted”
standard of Rule 15(a) with the “good cause” standard of Rule 16. 204 F.3d at 339. In its
analysis, the Court noted that Rule 16(b) “directs” district court judges to set scheduling orders,
limiting the time to make such amendments. Id. It reviewed the case law in several Circuits, and
ultimately concluded that “the Rule 16(b) ‘good cause’ standard, rather than the more liberal
standard of Rule 15(a), governs a motion to amend filed after the deadline” to amend the
pleadings has passed. Id. at 340-341.
The Second Circuit’s decision in Kassner emphasizes the importance of adhering to the
deadlines established in the Rule 16 Scheduling Order.

In that case, the Second Circuit

considered the relationship between Rule 16 and the portion of Rule 15(a) allowing a party to
serve an amending pleading “as a matter of course at any time before a responsive pleading is
served.” F.R.C.P. 15(a). Discussing both rules, the Second Circuit held that even amending a
pleading “as a matter of course” pursuant to rule 15(a) “is subject to the district court’s discretion
to limit the time for amendment of the pleadings in a scheduling order issued under Rule 16(b).”
496 F.3d at 244.
As discussed above, the February 9, 2012 and September 21, 2012 Rule 16 Scheduling
Orders specifically state that “The parties shall file all motions, other than motions in limine, by
this date. . . after which no discovery will be conducted and no motion will be entertained

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without a showing of special circumstances” (Exhibits “I” and “N,” emphasis added).
Significantly, another Rule 16 Scheduling Order was not entered, and therefore September 21,
2012 remained the deadline by which to make a motion to amend the pleadings.1 Plaintiffs
counsel never requested that the dates by which to file all motions, other than motions in limine,
be extended. Even if he had, using this Court’s prior Orders as a guide, that deadline would
presumably have been July 18, 2014, the cut-off for fact discovery, or October 9, 2014, the cut­
off for expert discovery (Exhibit “U”). Clearly, the deadline to make a motion to amend the
pleadings has expired.
Plaintiffs counsel has not moved to amend the Scheduling Orders pursuant to Rule 16,
and therefore plaintiffs motion to amend the Complaint pursuant to Rule 15 should be
summarily denied. Furthermore, he has not even tried to demonstrate “good cause” as to why
the deadlines previously established in two Scheduling Orders should be extended (as distinct
from his arguments regarding Rule 15(a)).2 Accordingly, it is respectfully submitted that this
Court need not even reach the issue of whether plaintiffs counsel may amend the Complaint
pursuant to Rule 15(a).
POINT II
PLAINTIFF’S COUNSEL CANNOT MEET
THE STANDARD FOR LEAVE TO AMEND
A.

General Principles

Although Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend
“shall be freely given when justice so requires,” the Court still has discretion to grant or deny
1 In contrast, this Court set specific deadlines by which dispositive motions were to be made, thereby
superseding those dates.
2 As the Second Circuit noted in Parker and Kassner, the “good cause” standard is stricter than the
standard applied under a Rule 15 analysis.

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leave to amend. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007); see
also Zahra v. Town of Southold, 48 F.3d 674, 686 (2d Cir. 1995) (upholding the denial of a
motion to amend the complaint that was filed 2 1/2 years after commencement of the action, and
three months prior to trial); Ansam Assocs., Inc. v. Cola Petroleum Ltd., 760 F.2d 442, 446 (2d
Cir. 1985) (upholding denial of a motion to amend a complaint when discovery had been
completed and motions for summary judgment had been filed). The factors to consider include
futility, bad faith, undue delay or undue prejudice to the opposing party. Williams v. Citigroup,
Inc., 659 F.3d 208 (2d Cir. 2011); McCarthy, 482 F.3d at 200. In McCarthy, the Second Circuit
upheld the district court’s denial of plaintiffs motion to amend the complaint as a result of
plaintiffs “inordinate delay,” given that discovery had been closed, defendants had moved for
summary judgment and two years had passed since the filing of the original complaint. Id. at
202.

1.

Undue Delay

As discussed in detail above, this action has been pending for over four years. During
that time, plaintiffs counsel has made three applications to amend the Complaint, and discovery
has been proceeding extraordinarily slowly over the past two years. Plaintiffs latest motion to
amend the Complaint was made after a trial date was scheduled, and two weeks before
defendants were to make summary judgment motions, when it could have been made as soon as
this Court rendered its decision on JHMC’s motion to dismiss for failure to state a cause of
action.
Furthermore, plaintiffs counsel claims that his motion to amend the Complaint to
reinstate the previously dismissed §1983 claims against Jamaica Hospital could not have been
made earlier because he had not obtained the testimony of the codefendants Dr. Lilian Aldana-

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Bernier and Dr. Isak Isakov, and non- party Dr. Vinod Dhar (pp. 11-12 of plaintiffs counsel’s
12/4/14 Memorandum of Law). However, Dr. Aldana-Bernier was deposed on February 11,
2014, Dr. Isakov was deposed on February 12, 2014 and Dr. Dhar was deposed on July 7, 2014.
Nevertheless, plaintiffs counsel waited an additional five months to make his motion to amend
the Complaint. There has clearly been an inordinate delay, and therefore plaintiffs motion
should be denied. See Strada v. City of New York, (E.D.N.Y. 2014); Burch v. Pioneer Credit
Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008) (motions to amend should be denied if there is
undue delay and repeated failure to cure deficiencies by amendments previously allowed).
Significantly, plaintiffs counsel has not offered a “satisfactory explanation” for the delay.
See Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir. 1990); Tokio Marine & Fire Ins.
Co. v. Employers Ins. Of Wausau, 768 F.2d 101, 103 (2d Cir. 1986); Sanders v. Thrall Car Mfg.
Co., 582 F.Supp. 945, 952, aff’d 730 F.2d 910 (2d Cir. 1984). In Sanders, the court noted that
“where, as here, ‘a considerable period of time has passed between the filing of the complaint
and the motion to amend, courts have placed the burden upon the movant to show some ‘valid
reason for his neglect and delay’” (citations omitted). 582 F.Supp. at 953.
Given that this Court dismissed plaintiffs §1983 claims against Jamaica Hospital because
plaintiffs counsel did not plead the necessary elements to state a claim, plaintiffs counsel’s
attempts to justify his tardiness by claiming he needed discovery is spurious— discovery is not
necessary to amend a pleading simply to state a cause of action. In that regard, while plaintiffs
counsel cites the Schoolcraft decision for the alleged holding that “[ajbsent a policy or practice
that caused the violation of Officer Schoolcraft’s constitutional rights, the Court held that no
claim could be stated” (p. 7, plaintiffs counsel’s Memorandum of Law), the actual holding of
that case was that absent allegations that a policy or practice caused a violation of plaintiffs

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rights, no claim could be stated. That distinction is significant because it demonstrates that
plaintiffs counsel did not have to rely upon discovery to make a motion to amend.
2.

Futility
a.

Plaintiffs Counsel Has Not Alleged the Necessary Elements to
State a Claim

An amendment is “futile” if it cannot withstand a motion to dismiss under Rule 12(b)(6).
Shallow v. Scofield, 2012 U.S.Dist. LEXIS 135697 (S.D.N.Y. September 21, 2012); Anderson
News, L.L.C. v. Am. Media, Inc., 680 F.2d 162 (2d Cir. 2012); see also Mina Inv. Holdings, Ltd.
v. Lefkowitz, 184 F.R.D. 245, 247 (S.D.N.Y. 1999) (a proposed amendment is futile when it fails
to state a claim).
In the context of private actors, private employers are not vicariously liable under §1983
for the constitutional torts of their employees “absent allegations of conduct pursuant to an
official policy.” Dilworth v. Goldberg, 914 F.Supp.2d 433, 452 (S.D.N.Y. 2012). In its prior
decision, this Court discussed the standard under which a private corporation could be liable
under §1983 for the unconstitutional actions of its employees, and noted that plaintiff could not
state a cause of action for violation of his civil rights because plaintiff had not “sufficiently
alleged that JHMC’s employees acted pursuant to an official policy, the direction of a JHMC
policy maker, or JHMC custom when they participated in the deprivation of Plaintiffs
constitutional rights.” Schoolcraft v. City of New York, 2011 U.S.Dist. LEXIS 48996, *17
(S.D.N.Y. May 5, 2011).

Significantly, plaintiffs third proposed amended complaint

(attached as Exhibit 1 to plaintiffs motion) does not contain any of those allegations.
There are no allegations regarding the “official policy” to which the Jamaica Hospital
employees were allegedly acting; there are no allegations regarding any Jamaica Hospital
“policy maker”; and there are no allegations that any of the Jamaica Hospital staff were

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acting pursuant to Jamaica Hospital custom when they allegedly participated in the alleged
deprivation of plaintiffs constitutional rights. Because allowing plaintiff to file the third
Proposed Amended Complaint would be futile, plaintiffs motion should be denied. See Amnesty
Amer. v. Town of West Harford, 361 F.3d 113, 125 (2d Cir. 2004); Burch, supra, 551 F.3d at 126
(motion to may be denied if there has been repeated failure to cure deficiencies in a complaint).

b.

Plaintiffs counsel does not have a factual basis for his amendment

Even if plaintiffs proposed third amended complaint contained the necessary allegations,
plaintiff could still not establish them, particularly given this Court’s observation that plaintiffs
theory is that “the hospital’s employees defied its standard practices in taking orders from and/or
collaborating with the NYPD to deprive him of his constitutional rights.” Schoolcraft, 2011
U.S.Dist. LEXIS at *13.3

1.

An official policy

As this Court recognized, the Supreme Court has identified at least two situations that
constitute an official policy: “(1) where there is an officially promulgated policy as that term is
generally understood. . . and (2) where a single act is taken by a municipal employee who, as a
matter of State law, has final policymaking authority in the area in which the action was taken.”
Schoolcraft, 2011 U.S.Dist. LEXIS at *12 (citations omitted).
In his motion, plaintiffs counsel admits that the “official policy” of Jamaica Hospital
conforms with the Mental Hygiene Law (p. 11, plaintiffs counsel’s 12/4/14 Memorandum of

3 If plaintiffs counsel is not alleging that the JHMC staff cooperated with the police and acted at their
direction, then plaintiffs counsel cannot establish state action, which would also be required for plaintiff
to assert a § 1983 claim against the Hospital.

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Law).

In addition, there is no dispute that Dr. Aldana-Bemier and Dr. Isakov were the

psychiatrists who admitted and treated the plaintiff, and there is nothing to suggest that they had
authority to make policy— only individual treatment decisions. Although they may have had
discretion in terms of whether to admit and retain the plaintiff, discretionary authority is not the
same as final policymaking authority. See e.g., Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000).
Therefore, the isolated decisions of Dr. Aldana-Bernier and Dr. Isakov to admit and retain the
plaintiff, respectively, do not constitute an act by someone who has final policymaking authority.

2.

The direction of a policy maker

Plaintiffs counsel has not alleged, and does not have evidence of, who had “final
policymaking authority” at Jamaica Hospital, which is necessary to sustain a claim under this
prong. See Jeffes v. Barnes, 208 F.3d at 57 (emphasis added). Although Dr. Dhar was the
assistant chair of the psychiatric department (Exhibit “X”, p. 16), the chair of the department was
Dr. Vivek (Exhibit “X”, p. 26). Furthermore, Dr. Dhar testified that he did not have any role in
creating the Jamaica Hospital policy on involuntary admissions; rather, Dr. Vivek did (Exhibit
“X”, pp. 44-45). Therefore, based upon the evidence before this Court, plaintiff cannot sustain a
cause of action against Jamaica Hospital for alleged §1983 violations as a result of a
policymaker’s “direction.”3

3.

A widespread custom

As this Court recognized in its decision, a “custom” need not receive formal approval by
the appropriate decision maker. Schoolcraft, 2011 U.S.Dist. LEXIS at *12. Rather, an act
performed pursuant to a “custom” that has not been “formally approved by an appropriate

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decision maker” may subject an employer to liability “on the theory that the relevant practice is
so widespread as to have the force of law” Schoolcraft, 2011 U.S.Dist. LEXIS at *12-13 (citation
omitted). To prevail on that theory, the plaintiff must prove that “the custom at issue is well
settled” and that it is “so permanent and well settled as to constitute a custom or usage with the
force of law.”

Schoolcraft, 2011 U.S.Dist. LEXIS at *13 (citations omitted).

The

unconstitutional practice must be “so manifest as to imply the constructive acquiescence of
senior policy-making officials.” Sorlucco v. New York City Police Department, 971 F.2d 864,
871 (2d Cir. 1992).
Plaintiffs counsel has not alleged and cannot establish a widespread custom of depriving
a patient of his civil rights. In Green v. City of New York, 465 F.3d 65 (2d Cir. 2006), the Court
held that the plaintiff did not have sufficient evidence of a widespread custom to establish
municipal liability because plaintiff could only point to one instance in which emergency
personnel were not familiar with the correct protocol, and could not point to any other instances
in which City personnel had engaged in similar actions as the defendants had engaged. See
Green, 465 F.3dat81.
Although plaintiffs counsel refers to Dr. Isakov’s and Dr. Aldana-Bernier’s
understanding of the Mental Hygiene Law, neither testified about the general practice at Jamaica
Hospital or their understanding of how countless other psychiatrists who practice at Jamaica
Hospital apply the Mental Hygiene Law. In fact, while plaintiffs counsel may question whether
Dr. Aldana-Bernier appropriately followed Jamaica Hospital policy, there was no doubt that she
was aware that the policy was to admit a patient who presented a “substantial danger” to himself
or others; she testified as follows (Exhibit “W”, pp. 239-241):
Q:

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Do you endeavor to follow the written policies of Jamaica Hospital, the written
ones?

12

A:

The written, yes.

Q:

In dealing with Mr. Schoolcraft, did you endeavor to follow the policy set forth
here as Exhibit 70 [referring to JHMC’s policy on emergency admissions,
attached as Exhibit 6 to plaintiffs motion]?
*

Q:
A:

*

* [Colloquy]

Is your answer, yes, you tried to—
That’s what I’m saying, yes.

Dr. Dhar testified that whether the risk of physical harm is considered “substantial” is
“not really defined. It’s clinical judgment and based on that clinical judgment, you make a
determination” (Exhibit “X”, p. 128). Similarly, when asked whether there was “any difference
between a potential or any potential risk of dangerousness and a substantial risk of
dangerousness” under the Jamaica Hospital policy, he answered, “Again, it’s a clinical judgment.
I don’t think it’s defined in the policy” (Exhibit “X”, p. 133). Thus, whether any risk is deemed
substantial is up to the individual clinician—it is not a policy issue.
Furthermore, when a plaintiffs constitutional rights have been violated by an employee’s
single tortious decision or course of action, “the inquiry focuses on whether the actions of the
employee in question may be said to represent the conscious choices of the municipality itself.”
Amnesty Amer. v. Town of West Harford, 361 F.3d 113, 125-126 (2d Cir. 2004). A municipality
will not be liable unless the municipality’s policies were the “moving force” behind the alleged
constitutional violation. Barry v. New York City Police Dept., 2004 U.S. Dist. LEXIS 5951
(S.D.N.Y. April 7, 2004) (citing Board of the County of Comm’rs of Bryan County v. Brown,
520 U.S. 397 (1997)). There must be a causal link between the custom or policy and the alleged
wrongdoing. Id. Courts must apply “rigorous standards of culpability and causation. . . to
ensure that the indirect-causation theory not result in the municipality’s being ‘held liable solely

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for the actions of its employee.”’ Id. at 32 (citing Jeffes v. Barnes, 20 F.Supp.2d 204 (N.D.N.Y.
1998)).
The decision in Warheit v. City of New York, 2006 U.S.Dist. LEXIS 58167 (S.D.N.Y.
August 15, 2006) is on point. In that case, the police brought the plaintiff to Bellevue Hospital,
where he was involuntarily hospitalized. Plaintiff brought a cause of action for violation of his
civil rights. The Court granted the defendant’s motion for summary judgment and dismissed
plaintiffs claim against the defendant Hospital. The court noted that in order to sustain a Monell
claim alleging violation of §1983 against the hospital, the plaintiff would have to establish a
policy or custom
to involuntarily commit patients to the hospital in violation of their
substantive and procedural due process rights. This would require proof of a
written directive or regulation by [defendant], an act by an [sic] policymaking
employee at [defendant hospital], or a practice so widespread that it has the
force of law at [the defendant hospital]. [Plaintiff] establishes none of these.
All [plaintiff] pleads is that a number of physicians at [defendant hospital],
none of whom worked in a policymaking capacity, committed him to
[defendant hospital] on an emergency basis pursuant to New York’s Mental
Hygiene Law. ... A single incident by persons without policymaking
authority cannot create liability under Monell. Were the Court to hold
differently, it would in essence be holding [defendant hospital] liable in
respondeat superior for the conduct of its employees. This is exactly what
Monell forbids.
Warheit at *27-38. As in Warheit, plaintiffs counsel fails to meet his burden.

3.

Undue Prejudice

According to Rule 16(b) of the Federal Rules of Civil Procedure, the Court must enter a
scheduling order setting various deadlines, including “the time to join other parties [and] amend
the pleadings.” That Rule “is designed to offer a measure of certainty in pretrial proceedings,
ensuring that at some point both the parties and the pleadings will be fixed.” Beckett v.

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Incorporated Village of Freeport, supra at *13 {citing Parker v. Columbia Pictures Industries,
204 F.3d at 339-340 (2d Cir. 2000)). Although plaintiffs counsel argues that Jamaica Hospital
is not prejudiced because it was aware that this Court dismissed plaintiffs §1983 claims without
prejudice, he does not address the fact that the defendant was able to take comfort in knowing
that the Rule 16 scheduling orders established a deadline by which plaintiffs counsel could
make his motion, and that that deadline had passed.
In addition, one of the factors to consider in determining whether a party will be
prejudiced is whether there would be significant delay in the resolution of the dispute. See e.g.
Ho MyungMoolsan Co., Ltd. v. Manitou Mineral Water, Inc., 665 F.Supp.2d 239, 262 (S.D.N.Y.
2009). In this case, it will take time to resolve plaintiffs motion. If plaintiffs motion is granted,
Jamaica Hospital will have to re-draft and re-submit its summary judgment motion to dismiss the
§1983 claims that were not previously asserted against it. For example, in the proposed Third
Amended Complaint, plaintiffs second, third, fourth, fifth and sixth claims appear to be alleged
against Jamaica Hospital, and defendant would want to make a summary judgment motion as to
those claims. Similarly, given the evidence that has emerged through discovery, it is clear that
Jamaica Hospital could not be considered a state actor, and defendant would want to make a
summary judgment motion dismissing plaintiffs §1983 claims on those grounds as well.

4.

Bad Faith

Plaintiffs counsel’s bad faith is evident by his utter failure to raise the issues presented in
his motion at the numerous conferences held before this Court in which briefing schedules and
potential trial dates had been discussed.4 It is inconceivable that plaintiffs counsel did not
4 Plaintiffs counsel also did not request that the Rule 16 Scheduling Orders be modified—presumably so
he would not telegraph his intentions to make a motion to amend the Second Amended Complaint.

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intend to surprise all defendants’ counsel with a last minute motion at the same time defendants’
attorneys would be drafting summary judgment motions. As this Court stated in Sanders v.
Thrall Car Manufacturing Co., 582 F.Supp. at 951:
While the defendants were in the midst of preparing a motion to dismiss the
original complaint, plaintiff filed a first amended complaint containing new
factual allegations and adding several causes of action. . .. Defendants allege that
although plaintiff ‘was aware that defendants were expending considerable time
and effort in preparing a motion to dismiss, they were given no advance notice of
plaintiffs intention to amend. . .. Confronted with a materially altered complaint,
defendants once again commenced preparation of motion papers responsive to the
new pleadings.
‘ [Ajfter defendants had largely completed new motion papers, plaintiff requested
leave to again amend the complaint. . . Defendants strongly opposed a
continuation of ‘plaintiffs ever-shifting pleadings’ and averred that plaintiffs
conduct, ‘by design or negligence has imposed unwarranted burdens on the
defendants.’
Although the Court in Sanders granted plaintiffs motion to file a second amended
complaint, it stated, “In light of the history of this case, we may well have reached—as
defendants urge—‘the time [which] must arrive at some stage of every litigation when plaintiff
must be required to stand upon the allegations he is asserting.’” Id. (quoting Bernstein v. N.V.
Nederlandsche-Amerikaansche Stoomvaart Maatschapij, 79 F.Supp. 38, 42 (S.D.N.Y. 1948).
The Court then denied plaintiffs motion to amend the Complaint for a third time, in part because
of “plaintiffs excessive delay in asserting an additional cause of action and her repeated failure
to cure this alleged deficiency in previous amendments.” 582 F.Supp. at 952.
Plaintiffs counsel’s bad faith is demonstrated by his Memorandum of Law in which he
implies that this Court’s statement that plaintiff “ought to be afforded the opportunity to test his
claim on the merits” (pp. 2 and 13) was related to Jamaica Hospital’s motion to dismiss for
failure to state a claim. Rather, plaintiff cites the Court’s decision on plaintiffs motion to amend
the Complaint; the Court did not make that comment in relation to JHMC’s motion, and

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plaintiffs counsel’s implication that it did so demonstrates bad faith.
Finally, plaintiffs Proposed Third Amended Complaint (attached as Exhibit 1 to
plaintiffs motion) does not simply make “editorial and typographical changes to the Second
Amended Complaint” (p. 15, plaintiffs counsel’s Memorandum of Law). Rather, there are
many substantial changes, designed to augment plaintiffs position. For example, in paragraph 6,
plaintiffs counsel seeks to remove the word “Caucasian,” which is clearly to diminish the
impact of the tape recording in which the plaintiff said he did not want to work with any n.....s.
Similarly, in paragraph 181, plaintiffs counsel attempts to minimize the hyperbole in the
complaint by adding that plaintiff was denied “the free” use of a phone or “reasonable access to”
water, food or bathroom facilities (as opposed to being denied the use of a phone and all access
to water, food and bathroom facilities). In paragraphs 184 and 194, plaintiffs counsel wants to
correct factual misrepresentations, and in paragraph 295, plaintiffs counsel has the temerity to
add an additional allegation that plaintiff was forcibly restrained and not provided with less
restrictive alternatives.
The above-referenced examples are by no means exhaustive.

In the absence of

contention Interrogatories, defendants must rely upon the complaint. The Second Amended
Complaint has been the operative pleading for two years. For plaintiffs counsel to make any
changes at this late juncture, even if they simply were “editorial and typographical” (which they
are not), is the epitome of bad faith.

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CONCLUSION

For the foregoing reasons, it is respectfully requested that this Court deny plaintiffs
motion in its entirety, together with such other and further relief as this Court deems just and
proper.
Dated: New York, New York
December 18, 2014
Respectfully submitted,.
Martin Clearwater & Bell llp

By:.
_
Gregory J. Radomisli (GJR 2670)
Attorneys for Defendant
JAMAICA HOSPITAL MEDICAL CENTER
220 East 42nd Street
New York, NY 10017
[phone]

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