Schoolcraft v. The City Of New York et al

Filing 298

DECLARATION of Suzanna P. Mettham in Support re: 297 MOTION for Summary Judgment .. Document filed by Christopher Broschart(Tax Id. 915354 in his official capacity), Christopher Broschart(Tax Id. 915354 Individually), Timothy Caughey(Tax Id. 885374 Individually), Timothy Caughey(Tax Id. 885374 in his official capacity), Kurt Duncan(Shield No. 2483, Individually), Kurt Duncan(Shield No. 2483 in his official capacity), William Gough(Tax Id. 919124, Individually), William Gough(Tax Id. 919124, in his Official Capacity), Thomas Hanley(Tax Id. 879761, in his Official Capacity), Thomas Hanley(Tax Id. 879761, Individually), Elise Hanlon(in her official capacity as a lieutenant with the New York City Fire Department), Elise Hanlon(individually), Shantel James(Shield No. 3004 in his official capacity), Shantel James(Shield No. 3004 Individually), Theodore Lauterborn(Tax Id. 897840 in his official capacity), Theodore Lauterborn(Tax Id. 897840, Individually), Michael Marino, Michael Marino, Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370 in his official capacity), Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370, Individually), Robert W. O'Hare(Tax Id. 916960, Individually), Robert W. O'Hare(Tax Id. 916960, in his Official Capacity), Frederick Sawyer(Shield No. 2576 in his official capacity), Frederick Sawyer(Shield No. 2576, Individually), The City Of New York, Timothy Trainer(Tax Id. 899922, in his Official Capacity), Timothy Trainer(Tax Id. 899922, Individually), Richard Wall, Sondra Wilson(Shield No. 5172, in her Official Capacity), Sondra Wilson(Shield No. 5172, Individually). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG, # 34 Exhibit HH, # 35 Exhibit II, # 36 Exhibit JJ, # 37 Exhibit KK, # 38 Exhibit LL, # 39 Exhibit MM, # 40 Exhibit NN, # 41 Exhibit OO, # 42 Exhibit PP, # 43 Exhibit QQ, # 44 Exhibit RR)(Shaffer, Ryan)

Case l-:10-cv-06005-RWS Document

291

LINITED STATES DISTRICT COURT
SOUTHERNDISTRICT OF NEW YORK

Filed

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.X

ADRIAN SCHOOLCRAFT,
1o-cv-6005 (Rws)

Plaintiff,
-against-

MEMORANDUM OF LAW
IN SUPPORT OF MOTION
TO AMEND

THE CITY OF NEW YORK, et al.,
Defendants

x
Prelíminary Statement

Plaintiff, Police Officer Adrian Schoolcraft ("Officer Schoolcraft" or

"Plaintiff'), submits this memorandum of law in support of his motion to amend
his complaint. The proposed Third Amended Complaint is attached as Exhibit

I,

and the governing pleading, the Second Amended Complaint, is attached as

Exhibit 2. To facilitate review of the proposed changes, a draft of the proposed
Third Amended Complaint, which reflects or "tracks" the changes is attached

Exhibit

as

3,

The proposed amendments are as follows:

1.
2.
3.

Dropping four named defendants, at the request of the City Defendants;
Dropping a redundant claim for relief under $ 1983, at the request of
the City Defendants;
Clariffing that two individuals identified in the Second Amended
Complaint (Steven Weiss and Rafel Mascol) are named defendants in
this action whose names were inadvertently omitted from the caption

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and a list of NYPD-related defendants;
Re-asserting claims under $ 1983 against Jamaica Hospital Medical
Center ("JHMC");
Adding a claim for declaratory judgment relief, seeking from the Court
as part of the final relief an order finding: (1) that all of the defendants'
conduct with respect generally and with respect to their treatment of
Officer Schoolcraft was unlawful; (2) and directing the expungment of
Officer Schoolcraft's medical and personnel records to the extent that
those records suggest that Officer Schoolcraft was properly admitted to
a psychiatric ward, that he suffers from a mental illness, that his
condition required his commitment to a psychiatric hospital, and that he
is dangerous to himself or others.
Making editing and typographical changes to the Second Amended
Complaint, as reflected in the track-changes version attached as Exhibit
J.

4.
5.

6.

Standard For A Motion To Amend
Pursuant to Rule l5(aX2) of the Federal Rules of Civil Procedure, leave to
amend a pleading shall be given freely when justice requires, Schoolcrøft v. Cíty
of New York,2012 U.S. Dist. Lexis 82888 at *2 (S.D.N,Y. June 14, 2012).

"If

the

underlying facts or circumstances relied upon by a plaintiff may be a proper
subject of

reliet

he ought to be afforded the opportunity to test his claim on the

merits." /d. (quotingWitliams v. Citigroup, 1nc,,659 F.3d 208,213 (2d Cir.
2011)). "However, [a] district court has discretion to deny leave for good reason,
including futility, bad faith, undue delay, or undue prejudice to the opposing

parfy." /d. (quoting McCarthy v. Dunn & Brødstreet Corp.,482F.3d 184,200 (2d
Cir.2007)).

2

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Argument
For the reasons set forth below, Officer Schoolcraft requests that the motion

to amend be granted.

l,

Dropping Four Named Defendants.

On July 30,2014, the City Defendants sent plaintiff s counsel a letter
requesting that various claims and certain defendants be dropped from the action.

A copy of the letter is attached

as

Exhibit 4.

In their letter, the City Defendants request that Officer Schoolcraft drop his
claims against five individual defendants: Sondra Wilson; Richard Wall; Robert

O'Hare; Thomas Hanley; and Timothy Trainor.

(1d..

at pp. 1-2) These five

defendants all worked in the Brooklyn North Investigation Unit and were each

personally involved in the numerous retaliatory and harassing "visits" upstate to

Officer Schoolcraft's home after he was released from the JHMC psychiatric ward.
By this motion, Officer Schoolcraft requests leave to amend his pleading to
drop as named defendants the four subordinate offìcers in that Unit who reported to
the lJnit's commanding officer, Captain Timothy Trainor. Upon review of the

extensive discovery record in this case, it appears that these four named defendants
should be dropped from the action as defendants.

Officer Schoolcraft, however, does not agree to drop his claims against
Captain Trainor because Captain Trainor was the senior superior officer in charge

J

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of the Brooklyn North Investigations Unit. In that capacity, Captain Trainor
directed that his subordinate officers.harass, videotape, and spy on Offrcer
Schoolcraft at his home in upstate New York. Indeed, in discovery we have
learned thatCaptain Trainor personally directed two of his subordinates,
Defendants Gough and Duncan -- who were also the two Brooklyn North

Investigation Unit offrcers who assaulted and handcuffed Officer Schoolcraft in his
home on October 3I,2009 -- to accompany others from the Unit on three of their

"visits" to Officer Schoolcraft's upstate home.
Moreover, the discovery record shows that Captain Trainor purposefully
selected Gough and Duncan for these "visits" for the pu{pose of intimidating

Officer Schoolcraft with the implicit threat of again being handcuffed and forcibly
removed against his

will from his home. Captain Trainor directed Defendants

Gough and Duncan to participate in these "visits" even though both Gough and
Duncan told Captain Trainor that they had concems about being given the
assignment precisely because they were the ones from the Brooklyn North

Investigations Unit who assaulted and handcuffed Officer Schoolcraft on October

31,2009. Despite these stated concerns, Captain Trainor, nevertheless, ordered
Defendants Gough and Duncan to "visit" Officer Schoolcraft's home -- a two
hundred mile trip -- on three occasions, purportedly to deliver paperwork to Officer
Schoolcraft.

4

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Accordingly, we request that Offrcer Schoolcraft be permitted to amend the
Second Amended Complaint to drop Wilson, Wall, O'Hare, and Hanley as
defendants.

2.

Dropping the First Clairnfor Relief.

In the City Defendants' letter, they also request that Officer Schoolcraft drop
his

frst claim for relief. (Exhibit 4 atpp.3-4) The basis for the request

is that the

first claim for "deprivation of rights" under $ 1983 is insufficient because $ 1983 is
not an independent source of a substantive right, but a procedural mechanism for

providing a person denied a federal right with a remedy, (Id.)
We agree. Accordingly, in the proposed Third Amended Complaint we have
re-cast those general allegations so that the first claim for relief contains Offrcer

Schoolcraft's first substantive claim. Accordingly, Plaintiff requests that this
amendment also be permitted.

3.

Clarifying Steven

lV'eiss and RaJel

Mascol's Status

øs Defendants.

The Second Amended Complaint (Exhibit 2) makes specifïc references to
'odefendant Weiss" and 'odefendant

Mascol." See id. atll66,100, 107 & 134

However, due to a clerical mistake,'Weiss and Mascol were not listed as
defendants in the caption or in the pleading's list of NYPD defendants (Id,

atp,I

p.4.)
Since both Weiss and Mascol were identified as defendants in the Second

5

&,

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Amended Complaint, the Court should permit this clariffing amendment. The
omission was only a clerical mistake and neither Weiss nor Mascol can claim any

prejudice arising from this correction.
The statute of limitations does not render this request
'Weiss

and Mascol, even

futile.

Defendants

if they had not been originally named as defendants, could

be brought in now as defendants in this action under the relation-back doctrine,

notwithstanding any limitations argument. Rule 15(c) of the Federal Rules of Civil
Procedure provides that an amended pleading relates back to the original pleading

for purpose of the statute of limitations when:

(l)

both complaints arise out of the

same conduct, transaction, or occurrence; (2) the additional defendant must have
been omitted from the original complaint by mistake; and (3) the additional

defendant must not be prejudiced by the delay. Anwar v.

Faffield Greenwich Ltd,,

2010 U.S. Dist. Lexis 86716 (S,D.N.Y. Aug, 18, 2010) (citing VKK Corp. v,

National Football League,244F.3d

ll4,I28

(2d Cir. 2001)).

The linchpin for the application of the relation back doctrine is notice to the
defendant

.

Schiavone v. Fortune, 477 U.S. 21 ,29 (1986). Accordingly, the

relevant inquiry is what the improperly named defendant'oknew or should have

known during the [relevant] period, not what the plaintiff knew or should have
known at the time of filing her original complaint." Krupski v. Costa Crocíere

s.P.A., 130 s. ct. 2485, 2493 (2010).

6

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Here, all the factors for relation back are satisfied. First, the claims arise

from the sÍÌme facts. Second, Weiss and Mascol were identified and mentioned

as

defendants in the Second Amended Complaint and were merely omitted from the

caption and the list of defendants by mistake, as evidenced by the references in the
text to them as defendants. Third, neither \üeiss nor Mascol can show any
prejudice arising from the fact that they were not previously served with a

summons. Thus, the amendment to include their names in the caption

as

defendants should be granted.

4.

Re-asserting Section l9B3 Claíms Against JHMC.

On May 5,2011, the Court granted JHMC's motion to dismiss the $ 1983

claim against it without prejudice. Schoolcraft v. City of New York,20l
Dist. Lexis 48996 at p. * 17 (S.D.N.Y. May

5,201l).

I

U.S.

The basis for the Court's

decision was that the complaint did not allege that "JHMC's employees acted
pursuant to an official JHMC policy, the direction of a JHMC policymaker, or

JHMC custom when they participated in the deprivation of PlaintifPs
constitutional rights."

Id. at*13. Absent a policy or practice that caused

the

violation of Off,rcer Schoolcraft's constitutional rights, the Court held that no claim
could be stated. Id.
Thus, the Court's decision was predicated on the

plaintiff s claim that JHMC

committed malpractice and departed from generally accepted medical practices

7

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when it involuntarily committed Officer Schoolcraft against his

will.

While this

allegation was sufficient to state a claim for malpractice, the Court ruled that it was

insufficient to state a claim under $ 1983 because that claim required that the
constitutional violation be caused by a JHMC policy or practice.
Since the Court's ruling on JHMC's pre-discovery motion to dismiss,

Officer Schoolcraft has taken extensive discovery from the defendants. Based on
that discovery, Officer Schoolcraft is now seeking to re-assert claims against

JHMC under Section 1983 to alleged that JHMC had an unlawful policy and
practice that caused the improper commitment of Officer Schoolcraft.

In discovery, we have learned:

(l)

that JHMC in fact had a policy and

practice of involuntarily committing patients who presented øny potential risk of
dangerousness, not a substantial risk, as required by the law; and (2) that the

decisions by JHMC's medical staff to involuntary commit Offrcer Schoolcraft
were based on that unlawfi¡l policy and practice.
Despite the explicit state and federal law requirements that an involuntary

commitment be based on a substantial risk of dangerousness, JHMC's actual

policy and practice was to authorize aî involuntary commitment based on any risk
of dangerousness. Section 9.39 of the New York State Mental Hygiene Law is the

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governing statutory provision for an emergency involuntary commitment.r
Generally, the statute provides that a doctor can involuntary commit a person on an
emergency basis provided that the doctor finds (i) that the person has a mental

illness; (ii) that the person requires immediate care, and

(iii) that there

has been

established a líkelihood of seríous harm to the patient or others.

Likelihood of serious harm is expressly defined in the statute to mean either;
" l . substantial risk of physical ha¡m to himself as manifested by

threats of or attempts at suicide or serious bodily harm or other
conduct demonstrating that he is dangerous to himself, or
2. a substantial risk of physical harm to other persons as manifested
by homicidal or other violent behavior by which others are placed in

I

ç e.:0. Emergency admissions þr immediate observation, cere, and treatment. (a)The
director of any hospital maintaining adequate staff and facilities for the observation,
examination, care, and treatment of persons alleged to be mentally ill and approved by the
commissioner to receive and retain patients pursuant to this section may receive and retain
therein as a patient for a period of fifteen days any person alleged to have a mental illness for
which immediate observation, care, and treatment in a hospital is appropriate and which is likely
to result in serious harm to himself or others. "Likelihood to result in serious harm" as used in
this article shall mean: 1. substantial risk of physical harm to himself as manifested by threats of
or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous
to lrimself, or 2. a substantial risk of physical harm to other persons as manifested by homicidal
or other violent behavior by which others are placed in reasonable fear of serious physical harm.
The director shall cause to be entered upon the hospital records the name of the person or
persons, if any, who have brought such person to the hospital and the details of the circumstances
leading to the hospitalization of such person. The director shall admit such person pursuant to
the provisions of this section only if a staff physician of the hospital upon examination of such
person finds that such person qualifïes under the requirements of this section. Such person shall
not be retained for a period of more than forty-eight hours unless within such period such finding
is confirmed after examination by another physician who shall be a member of the psychiatric
staff of the hospital

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reasonable fear of serious physical harm."2

A defense to a claim under $ 1983 for deprivation of an involuntarily
committed patient's constitutional rights to due process and liberty must be based
on compliance with the requirements of Section 9,39 of the Mental Hygiene Law.

That same compliance is also required as a defense to a $ 1983 claim of unlawful

imprisonment. In Project Release v, Prevost,722F.2d960,972-74 (2d Cir. 1983)'
the Second Circuit held that the provisions of Section 9.39 satisff the due process
clauses of the Fifth and Fourteenth Amendments. Similarly, in Rodriguez v. City

of New York,72F.3d 1051, 1061 (2d Cir 1995), the Second Circuit held that due
process requires an assessment of a patient's dangerousness as a condition to the

massive curtailment of liberty associated with an involuntary commitment,3 In

addition, District Courts within the Second Circuit have held that compliance with
Section 9.39 can establish the privilege defense to a claim for unlawful

imprisonment.a Thus, a finding of a substantial risk of dangerousness is a key

2

Id. (emphasis added),
3 *4r, involuntary civil commitment is a'massive curtailment of liberty', and it therefore cannot
permissibly be accomplished without due process of law. As a substantive matter, due process
does not permit the involuntary hospitalization of a person who is not a danger either to herself
or to others: assuming that the term [omental illness'] can be given a reasonably precise content
and that the 'mentally ill' can be identified with reasonable accuracy, there is still no
constitutional basis þr con/ìning such persons involuntarily if they are dangerous to no one and
can live safely infreedom;' Rodriguez v. City of New York,72 F. 3d 1051, 1061 (2d Cir. 1995)
(citations omiued and emphasis added).
4 See, e,g., Tewksbury v. Dowling, 169 F. Supp. l03,ll2 (E.D.N.Y. 2001); see also Ruhlmann
v. Smith,323F. Supp, 2d 356,360 (N.D.N.Y. 2004) (whether confinement was privileged
depended on whether Section 9.39 was satisfied).

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requirement under state and federal law.
The deposition of the Rule 30(bX6) witness for JHMC as well as the
depositions of Defendants Dr. Bernier and Dr. Isakov, the two JHMC doctors who
made the decisions to commit and to retain Offrcer Schoolcraft in the JHMC

psychiatric facility, show that Officer Schoolcraft was involuntarily committed
based on a JHMC policy and practice that violated Officer Schoolcraft's

constitutional rights.

It is correct that the written policy documents track the requirements of
Mental Hygiene Law Section 9.39 by requiring a substantial risk of dangerousness.
More specif,rcally, the pre-printed admission form filled out by Dr. Bernier, which
authorized Officer Schoolcraft's commitment, calls for a finding of a substantial

risk of dangerousness. (Exhibt 5.) Similarly, the formal JHMC policy statement
mimics the'osubstantial risk" language of the statute. (Exhibit 6.)5
On the other hand, all three JHMC medical witnesses testilied in deposition
that any potential rìsk of dangerousness \ryas all that was required to commit
someone involuntarily to their psychiatric

facility. The admitting doctor who

signed the pre-printed form, Defendant Bernier, testified at her deposition that
there was any potential risk that a person was dangerous she

t

if

will commiued the

Su, Exhibit 5 Emergency Admission Form, marked as Plaintiff s Deposition Exhibit 171; Exhibit 6;
JHMC Department of Psychiatry Manual on Emergency Admissions, marked as Plaintiff s Deposition
Exhibit 70.

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person involuntarily. (ExhibitT; Bernier Tr.248-49). Similarly, Dr, Isakov, the
attending doctor at the JHMC psychiatric ward who co-signed the same form,

confirming Dr. Bernier's commitment decision, testified that no matter what the
level of risk (low, medium, high), if he perceived that there is any potential risk of
dangerousness, he

will involuntarily commit

the patient. (Exhibit 8; Isakov Tr. at

94-95.) Finally, the Rule 30(bX6) witness for JHMC, Vinod Dhar, testified that
the policy and practice at JHMC was to involuntarily commit a patient where there
was any risk of dangerousness. (Exhibit 9; Dhar Tr. at 132-35.)
Based on these admissions, Officer Schoolcraft requests leave to amend his

complaint. The proposed amendment would re-assert that JHMC violated Section
1983 when it involuntarily committed Officer Schoolcraft pursuant to an

unconstitutional policy and practice that only called for any potential risk

of

dangerousness as a condition for involuntary commitment. The JHMC defendants

have admitted in their sworn testimony that their actual policy and practice was to

commit persons involuntarily to their psychiatric facility on a determination of
potential dangerousness at any level of risk -- instead of a substantial risk

as

required by Mental Hygiene Law Section 9.39 and the United States Constitution.

In other words, JHMC has in effect unlawfully re-written $ 9.39 by removing the
requirement of a substantial risk of danger and replacing it with the nominal or
non-existent requirement "any potential" risk of danger.

t2

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Although JHMC will argue that the Court has already ruled on this issue in
its decision on the motion to dismiss, there are at least three reasons why that
argument should be rejected. First, the initial motion to dismiss was granted
without prejudice,thereby putting JHMC on notice that the issue had not been

finally decided.
Second, the Court's decision was an interlocutory order and therefore, as a

matter of law, remains subject to modification prior to the entry of a final judgment
by the District Court.6 Indeed, Rule 54(b) expressly provides that a District

Court's orders

oomay

be revised atany time before the entry of a judgment

adjudicating all the claims and all the parties' rights and liabilities."
The Court should permit the amendment in the light of the information
obtained in discovery from JHMC about its actual policies and practices. As noted
above,
a

"[i]f

the underlying facts or circumstances relied upon by a plaintiff may be

proper subject of relief, he ought to be afforded the opportunity to test his claim

on the merits." Schoolcraft v. City of New York,2012 U.S. Dist. Lexis 82888 at *2

(S.D.N,Y. June 14, 2012).

A third factor that the Court should consider in ruling on this motion is that
when the Court decided JHMC's initial motion to dismiss, the case law generally

6

Petersonv. Syracuse Police Dept,,2012 U.S. App. Lexis at ** 8 n.l (2d Cir. Mar. 15,2012)
(district court has inherent porrver to modiff interlocutory orders); Grøce v. Rosenstock,22S F. 3d

l3

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held that a private entity could be subject to Section 1983 liability only under a

Monell-type analysis, where that entity's policy or practice caused the
constitutional violation. Schooløaft v, City of New York,2011 U.S. Dist. Lexis
48996 at

* 1l (S.D.N.Y. May 6,2011)

(citing Rojøs v. Alexqnder's Dept, Store,

924F.2d 406,408 (2d Cir. 1990)). Recently, however, the Seventh Circuit

has

noted that "current Supreme Court precedent seems to support rather than reject
respondeat superior liability for private corporations under $ 1983."7 Thus, the

underlying basis for the Court's holding has come into question, And as also noted
o'substantial grounds to
by the Seventh Circuit in that same decision, there are now

question the extension of the Monell holding for municipalities to private
corporations."s
Under these circumstances, Officer Schoolcraft respectfrrlly urges the Court
to judge this motion in the light of new facts developed through discovery as well
as the

evolving nature of the law on the issue of a private entity's liability under

$

1983. While the apparent shift in the law is an important consideration, the Court
need not agree that the law in the Second Circuit ought to change. As noted above,

the admissions by the JHMC defendants about their actual policies and practices
are sufficient grounds, even

if the law has not changed.

40, 50 (2d Cft.2000) ("All interlocutory orders remain subject to modification or adjustment
prior to entry of a final judgment adjudicating the claims to which they pertain").

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Adding a Claimfor Declaratory Judgment Relief,

Officer Schoolcraft also seeks to add a claim for declaratory judgment
against the defendants, The proposed amendments seek to have the Court declare

that the City Defendants' conduct was illegal and that Officer Schoolcraft's
medical and personnel files should be expunged to the extent that they contain a
record or a finding that Officer Schoolcraft was mentally

ill,

dangerous or

otherwise a person who required involuntary commitment to a psychiatric ward.
These proposed amendments do not add parties and arise from the same

operative facts as already set forth in the existing pleading. Accordingly, the
defendants cannot demonstrate any cognizable prejudice from these amendments.
Since leave to amend is freely granted and the defendants cannot point to any

prejudice, the motion should be granted.

6.

Making Editoríal and Typographical Changes to the Second Amended
Complaínt.

Finally, we request leave to make the various editorial and fypographical
changes to the Second Amended Complaint. Since leave to amend is freely

granted and no prejudice to the defendants can arise from these proposed changes,

1
I

Shieldt v. Illinois Department of Coruections,746F.3d782,793 (7thCir. 2014).

Id. at79o.
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this part of the motion should also be granted.

Dated: December 4,2014
New York, New York

LAW OFFICE OF
NATHANIEL B, SMITH

B.
111 Broadway, Suite 1305
New York, New York 10006
(2t2) 227-7062
Attorney for Plaintiff

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List of Exhibits

1. Proposed Third Amended Complaint

2. Second Amended Complaint
3. Tracked Changes of Third Amended Complaint
4. CiW Defendants Letter, dated 7/30114
5. Plaintiff s Exhibit 17l
6. Plaintiffs Exhibit 70
7. Bernier Tr. at p. I & 2,247-249
8. Isakov Tr. at p, I & 2,94-99
9, Dhar Tr. at p. 1,132-135