Schoolcraft v. The City Of New York et al

Filing 349

SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 348 AMENDED MOTION for Partial Summary Judgment . MOTION for Summary Judgment . . Document filed by Lillian Aldana-Bernier. (Callan, Paul)

10-CV-6005 (RWS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ADRIAN SCHOOLCRAFT,
Plaintiff,
-againstTHE CITY OF NEW YORK, et al.,
Defendants.

MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT ALDANA-BERNIER’S
MOTION FOR SUMMARY JUDGMENT

PAUL F. CALLAN
Callan, Koster, Brady, Brennan & Nagler, LLP
Attorney for Defendant
Dr. Lilian Aldana-Bernier
One Whitehall Street
10th Floor
New York, New York 10004

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ............................................................................................. iii
PRELIMINARY STATEMENT ......................................................................................... 1
FACTUAL SUMMARY .................................................................................................... 1
PROCEDURAL HISTORY .............................................................................................. 4
ARGUMENT
POINT I
STANDARD FOR SUMMARYJUDGMENT…................................. 6
POINT II
DR. ALDANA-BERNIER DID NOT DEPRIVE PLAINTIFF
OF ANY RIGHT WHILE ACTING UNDER THE COLOR
OF STATE LAW AS REQUIRED TO FIND LIABILITYUNDER
§1983 ............................................................................................. 6
POINT III
THERE IS NO EVIDENCE DR. ALDANA-BERNIER’S
ALLEGED ACTIONS AND/OR OMISSIONS ARE SUFFICIENT
TO ESTABLISH A CLAIM FOR INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS UNDER NEW YORK STATE LAW ......21
POINT IV
AS DR. ALDANA-BERNIER HAS ESTABLISHED SHE
IS ENTITLED TO THE DISMISSAL OF PLAINTIFF’S
§1983 CLAIMS, THE REMAINING STATE CLAIMS
SHOULD BE REMANDED TO STATE COURT ........................... 22
POINT V
PLAINTIFF’S CLAIM FOR DECLARATORY JUDGMENT
AGAINST DR. ALDANA-BERNIER MUST BE DISMISSED AS
THE COURT DID NOT GRANT HIM PREMISSION TO AMEND
HIS COMPLAINT TO INCLUDE A CLAIM OF RELIEF FOR
DECLARATORY JUDGMETN AGAINST HER ........................... 23

i

CONCLUSION............................................................................................................... 24

ii

TABLE OF AUTHORITIES
Pages

Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 119 S. Ct. 977, 143 L. Ed. 2d 130 (1999) .................................................. 6
Back v. Hastings on Hudson Union Free Sch. Dist.,
365 F.3d 107 (2d Cir. 2004) ........................................................................................

6

Baylis v. Marriott Corp.,
843 F.2d 658 (2d Cir. 1988) .................................................................................... 22-23
Blum v. Yaretsky,
457 U.S. 991, 73 L. Ed. 2d 534, 102 S. Ct. 2777 (1982) .............................. 7, 11, 13, 18
Clorofilla v. Town of New Castle,
106 Fed. Appx. 90 (2d Cir. N.Y. 2004) ......................................................................... 22
Doe v. Rosenberg,
996 F. Supp. 343 (S.D.N.Y 1998) .................................................................. 7-14, 18-19
Doe v. Rosenberg,
166 F.3d 507 (2d Cir. 1999) .................................................................................... 17, 19
Edwards v. Baptiste,
06-CV-00952, 2006 U.S. Dist. LEXIS 89147 (D.Conn. December 11, 2006) ............... 20
Flagg Bros., Inc. v. Brooks,
436 U.S. 149, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1978) .................................................. 7
Harvey v. Harvey,
949 F.2d 1127 (11th Cir. 1992) ................................................................................ 11-12
Hollander v. Copacabana Nightclub,
624 F.3d 30 (2d Cir. 2010) cert. denied 131 S. Ct. 914, 178 L. Ed. 2d 751 (2011) ......7-8
Hogan v. A.O. Fox Mem. Hosp.,
346 Fed. Appx. 627 (2d Cir. 2009) ........................................................................... 8, 14
Howell v. New York Post Co.,
81 N.Y.2d 115 (N.Y. 1993) ...................................................................................... 21-22

iii

Jackson v. Metropolitan Edison Cor.,
419 U.S. 345 (1974) ................................................................................................. 7, 10
Jane Doe v. Harrison,
254 F. Supp. 2d 338 (S.D.N.Y. 2003) ..................................................................... 14, 19
Johnson v. Unity Health Sys.,
08-CV-6258, 2010 U.S.Dist. LEXIS 30727 (W.D.N.Y. March 30, 2010) ....................... 20
McGugan v Aldana-Bernier,
752 F.3d 224 (2d Cir 2014) ........................................................................... 7, 12, 14-19
Medcalf v. Walsh,
938 F. Supp. 2d 478 (S.D.N.Y. 2013) ...................................................................... 21-22
Polk County v. Dodson,
454 U.S. 312, 102 S. Ct. 445, 70 L. ed 2d. 509 (1981) .................................................. 6
Rendell-Baker v. Kohn,
457 U.S. 830 (1982) ....................................................................................................... 8
Rockwell v. Cape Cod Hosp.,
26 F.3d 254 (1st Cir. 1994) ....................................................................................... 11-12
Silver v. City University,
947 F.2d 1021 (2d Cir. 1991)……………………………………………………................... 6
Stuto v. Fleishman,
164 F.3d 820 (2d Cir. N.Y. 1999) ............................................................................ 21-22
Sybalski v. Indep. Group Home Living Program, Inc.,
546 F.3d 255 (2d Cir. 2008) ...................................................................................... 8, 12
Thai v. Cayre Grp.,
726 F. Supp. 2d 323 (S.D.N.Y. 2010) ........................................................................... 21
Villano v. Kohl's Dep't Stores, Inc.,
362 F. Supp. 2d 418 (S.D.N.Y. 2005) ........................................................................... 23
Washington v. County of Rockland,
373 F.3d 310 (2d Cir. 2004) ............................................................................................ 7
West v. Atkins,
487 U.S. 42, 108 S. Ct. 2250, 101 L. Ed 2d. 40 (1977) .................................................. 6

iv

Statutes
28 U.S.C. § 1447(c) ...................................................................................................... 22
42 U.S.C. §1983 .................................................................................................... 6-7, 12
Fed. R. Civ. P. 56(e)........................................................................................................ 4
New York Mental Hygiene Law (“MHL”) §9.27 ............................................................... 9
New York Mental Hygiene Law § 9.39 ...................................................................... 7, 19

v

PRELIMINARY STATEMENT
The instant motion for summary judgment seeks to dismiss plaintiff’s claims for
relief under 42 U.S.C. §1983, for intentional infliction of emotional distress under New
York State Law and to remand the action to state court after dismissal of the federal
claims against Dr. Aldana-Bernier. A review of plaintiff’s Second Amended Complaint
shows that only plaintiff’s Eighth, Ninth and Tenth plead claims of relief under §1983
against Dr. Aldana-Bernier. However, to the extent plaintiff claims that his other claims
for relief under §1983 are made against Dr. Aldana-Bernier, the same analysis applies
to those claims as to plaintiff’s Eighth, Ninth and Tenth claims for relief under §1983.
There is no evidence to support plaintiff’s claim for relief for intentional infliction of
emotional distress under New York State Law. The remaining state law claims should
be remanded to state court in the event the claims under §1983 are dismissed. Finally,
plaintiff’s claims for declaratory judgment against Dr. Aldana-Bernier must be dismissed
as Judge Sweet’s Opinion and Order dated January 16, 2015, does not grant plaintiff
the right to amend his complaint for such relief against her.
FACTUAL SUMMARY
Dr. Lilian Aldana-Bernier did not deprive plaintiff of a right secured by the
Constitution or the laws of the United States while operating under the color of state
law.

Dr. Aldana-Bernier was not an employee of any federal, state or local

governmental entity in November 2009; rather, she was an attending psychiatrist
working at Jamaica Hospital. (Dr. Aldana-Bernier’s affidavit dated December 19, 2014,
is attached to the Declaration of Paul F. Callan dated January 29, 2015 (hereinafter
“Callan Decl.”) as Ex. C) (Ex. C to Callan Decl. ¶ 2)
1

After plaintiff was brought to Jamaica Hospital by ambulance, his first psychiatric
examination/assessment took place on November 1, 2009, at 6:30 am by Dr. Khin Mar
Lwin. (Jamaica Hospital Records are attached to Callan Decl. as Exhibit D) (Ex. C to
Callan Decl. ¶3; Ex. D to Callan Decl. pgs 4-6).

Plaintiff was still in the medical

emergency room when this examination occurred. (Ex. C to Callan Decl. ¶3; Ex. D to
Callan Decl. pgs 4-6).

In her note, Dr. Lwin wrote “As per Sergent James of 81st

Precinct, [plaintiff] complained of not feeling well yesterday afternoon and left his work
early after getting agitated and cursing a supervisor. They follow him home and he had
barricaded himself and the door had to be broken to get to him. He initially agreed to go
with them for evaluation but once outside, he ran and had to be chased and brought to
the medical ER, handcuffed.” [sic]. (Ex. D to Callan Decl. pg 5). Dr. Lwin also noted
“As per Sergeant James, [plaintiff] was evaluated by NYPD psychiatrist and can not
carry a gun or a badge for nearly a year.” [sic]. Id. In her recommendations, Dr. Lwin
wrote “discussed with Dr. Nwaishianyii and Sergeant James[/]case discussed with Dr.
Patel.” Id. at pg 6.
Dr. Indira Patel subsequently reviewed Dr. Lwin’s note and concurred with Dr.
Lwin’s findings. (Ex. C to Callan Decl. ¶5; Ex. D to Callan Decl. pgs 4-6).
Later that day, plaintiff was transferred to the psychiatric emergency room at
Jamaica Hospital.

(Ex. C to Callan Decl. ¶7; Ex. D to Callan Decl.).

Dr. Tariq

performed a psychiatric examination of plaintiff at approximately 12 p.m. on November
1, 2009. (Ex. C to Callan Decl. ¶8; Ex. D to Callan Decl. pgs 74-79). Dr. Tariq’s
psychiatric evaluation, in the chief complaints, writes “‘they just came in to my place and
handcuffed me’. As per accompanying NYPD officer (Sgt James as per ER consult) he
2

has been acting bizarre.” (Ex. C to Callan Decl. ¶8; Ex. D to Callan Decl. pg 74). Dr.
Tariq wrote a history of plaintiff’s present illness. (Ex. D. to Callan Decl. pgs 74-79). Dr.
Tariq’s plan was to hold plaintiff and stabilize him to reduce/eliminate his paranoid
delusions. Id.
Plaintiff was psychiatrically examined by Dr. Slowik on November 2, 2009, at
2:15 p.m. (Ex. C to Callan Decl. ¶9; Ex. D to Callan Decl. ¶87).
When Dr. Aldana-Bernier evaluated plaintiff, he was still in the psychiatric
emergency room. (Ex. D. to Callan Decl.). She was the fifth psychiatrist who evaluated
him at Jamaica Hospital. Id.. She evaluated him, spoke with him, and reviewed the
notes created by the prior evaluating physicians. (Ex. C to Callan Decl. ¶¶10-12). This
included the consultation reports/notes of Dr. Lwin, Dr. Patel and Dr. Tariq. (Ex. C to
Callan Decl. ¶11).
Dr. Aldana-Bernier made her medical decision regarding plaintiff based on the
various notes made by prior doctors and nurses as well as her own evaluation of
plaintiff. (Ex. C to Callan Decl. ¶12). She also sought a second opinion concerning her
opinion as to plaintiff. Id. at 13
Dr. Aldana-Bernier never spoke with a Sergeant James from the New York City
Police Department concerning plaintiff or involuntarily committing him. (Ex. C to Callan
Decl. ¶15). Dr. Aldana-Bernier has no recollection of speaking with the police officers
that brought plaintiff to Jamaica Hospital. Id. ¶16. She does not remember talking to
any police officer, at any time, regarding plaintiff. Id. Dr. Aldana-Bernier never spoke
with Dr. Catherine Lamstein, a New York City Police Department psychiatrist. Id. at
3

¶17. Dr. Aldana-Bernier never spoke with anyone from the Internal Affairs Bureau of
the New York City Police Department concerning plaintiff. Id. at ¶16.
Dr. Aldana-Bernier was not, and is not, a participant in any conspiracy to keep
plaintiff at Jamaica Hospital against his will. (Ex. C to Callan Decl. ¶18). Dr. AldanaBernier’s medical decisions concerning plaintiff were entirely based on her sound
medical judgment. Id. at ¶19. They were not influenced by her contact with anyone
from the New York City Police Department or any other state actor. Id. She was not
pressured, encouraged or compelled by anyone from the New York City Police
Department to keep plaintiff against his will. Id. Dr. Aldana-Bernier was not pressured,
encouraged or compelled by anyone from Jamaica Hospital to keep plaintiff there
against his will. Id. at 20. Dr. Aldana-Bernier never falsified medical records concerning
plaintiff. Id. at 21.
PROCEDURAL HISTORY
Plaintiff instituted the instant action with the filing and service of a Summons and
Complaint dated August 8, 2010.

Plaintiff served an Amended Summons and

Complaint dated September 12, 2010.

Subsequently, plaintiff served a Second

Amended Summons and Complaint dated October 1, 2012.

(Plaintiff’s Second

Amended Summons and Complaint are attached to Callan Decl. as Exhibit A).

Dr.

Aldana-Bernier interposed an Answer to the Second Summons and Complaint dated
October 22, 2012. (Dr. Aldana-Bernier’s Answer to the Second Amended Summons
and Complaint is attached to Callan Decl. as Exhibit B). In an Opinion and Order dated
January 16, 2015, Judge Sweet granted plaintiff motion’s to file and serve a Third

4

Amended Summons and Complaint. (A copy of Judge Sweet’s Order is attached to
Callan Decl. as Exhibit F). Plaintiff filed his Third Amended Complaint dated January
22, 2014. (A copy of the Third Amended Summons and Complaint is attached to Callan
Decl. as Exhibit G).

5

ARGUMENT
POINT I
STANDARD FOR SUMMARY JUDGMENT
Pursuant to Rule 56(e) of the Federal Rules of Civil Procedure, a court shall
grant a motion for summary judgment “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits…show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” See Silver v. City University, 947 F.2d 1021, 1022 (2d Cir. 1991).
Dr. Lilian Aldana-Bernier is entitled to summary judgment on plaintiff’s claims of
relief under Section 1983. Plaintiff cannot produce any evidence that he was deprived
of a right secured by the Constitution or the laws of the United States by Dr. AldanaBernier operating under color of state law.
POINT II
DR. ALDANA-BERNIER DID NOT DEPRIVE PLAINTIFF OF ANY RIGHT WHILE
ACTING UNDER THE COLOR OF STATE LAW AS REQUIRED TO FIND LIABILITY
UNDER §1983.
“To state a claim for relief in an action brought under §1983, [plaintiffs] must
establish that they were deprived of a right secured by the Constitution or laws of the
United States, and that the alleged deprivation was committed under the color of state
law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49, 119 S. Ct. 977, 143 L. Ed. 2d
130 (1999); see also, West v. Atkins, 487 U.S. 42, 49, 108 S. Ct. 2250, 101 L. Ed 2d. 40
(1977); Polk County v. Dodson, 454 U.S. 312, 317-18, 102 S. Ct. 445, 70 L. ed 2d. 509
(1981); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir.
6

2004); 42 U.S.C. §1983. Accordingly, Section 1983 “excludes from its reach ‘merely
private conduct, no matter how discriminatory or wrongful.’” Blum v. Yaretsky, 457 U.S.
991, 1002, 73 L. Ed. 2d 534, 102 S. Ct. 2777 (1982).
In order to prevail on his §1983 action, plaintiff, Adrian Schoolcraft, must show
“(1) that Defendants deprived [him] of a right secured by the Constitution or laws of the
United States and (2) that, in doing so, Defendants acted under color of state law.”
McGugan v Aldana-Bernier, 752 F.3d 224, 229 (2d Cir 2014); Washington v. County of
Rockland, 373 F.3d 310, 315 (2d Cir. 2004); Doe v. Rosenberg, 996 F. Supp. 343, 348
(S.D.N.Y 1998); See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156-57, 56 L. Ed. 2d
185, 98 S. Ct. 1729 (1978); 42 U.S.C. §1983. For the purposes of this motion only,
Defendant Dr. Aldana-Bernier will concede that involuntary confinement satisfied the
first requirement. However, Schoolcraft has not, and cannot, satisfy the second prong
of the test that Dr. Aldana-Bernier was a state actor when she treated him.
To establish that Dr. Aldana-Bernier, a private actor, is a state actor under 42
U.S.C. §1983, courts have required one of three circumstances to exist. Schoolcraft
must show that:
1. There is such a close nexus between the State and the challenged action such
that seemingly private behavior may be fairly treated as that of the State itself,
Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S. Ct. 2777, 73 L. Ed. 2d 534 (1982);
Jackson v. Metropolitan Edison Cor., 419 U.S. 345, 351 (1974); or,
2. The state has exercised coercive power or has provided such significant
encouragement, either overt or covert, that the individual’s action can only be

7

seen as that of the State, Blum, 457 U.S. at 1004; Hollander v. Copacabana
Nightclub, 624 F.3d 30, 34 (2d Cir. 2010) cert. denied 131 S. Ct. 914, 178 L. Ed.
2d 751 (2011) (citing Sybalski v. Indep. Group Home Living Program, Inc., 546
F.3d 255, 257 (2d Cir. 2008)); or,
3. The individual or entity has engaged in an activity or function that has been
“traditionally the exclusive prerogative of the State”. Rendell-Baker v. Kohn, 457
U.S. 830, 842 (1982); Jackson, 419 U.S. at 353; Flagg Bros., Inc. v. Brooks, 436
U.S. 149, 158-95 (1978).
The question of whether a New York State physician who orders the involuntarily
commitment of a patient while acting in her capacity as a private doctor is a state actor
for the purposes of 42 U.S.C. §1983 has been definitely answered in the Second Circuit
in McGugan v Aldana-Bernier, 752 F.3d 224, 229 (2d Cir 2014); Hogan v. A.O. Fox
Mem. Hosp., 346 Fed. Appx. 627, 629 (2d Cir. 2009) and Doe v. Rosenberg, 996 F.
Supp. 343, 352-53 (S.D.N.Y. 1998) aff’d 166 F.3d 507 (2d Cir. 1999). All of these cases
dealt with the same circumstances presented in the instant matter, i.e., a private
physician certifying the involuntary commitment of a patient under New York Mental
Hygiene Law § 9.39. The clear holding in these cases is that such conduct is not
actionable under 42 U.S.C. § 1983.
This Court addressed precisely the same issues pertaining to 42 U.S.C. §1983 in
Doe v. Rosenberg and ruled that a physician who involuntarily committed a patient in
her private capacity as a physician is not a state actor for purposes of §1983.

In

Rosenberg, plaintiff, Doe, went to Rosenberg’s office for a general physician
examination. Rosenberg, 996 F. Supp. at 346. During this examination, Doe revealed
8

she had been under a lot of stress for an extended period of time relating to her
professional, educational and personal lives.

Id.

She had also been experiencing

periods of depression and crying. Id. While she was being examined, Doe began
exhibiting symptoms of psychotic behavior. Id. It was Rosenberg’s opinion that Doe
needed immediate psychiatric treatment and she arranged for Doe to see Dr. Judith
Lewis, a private psychiatrist. Id. Doe left Rosenberg’s office, but did not meet with Dr.
Lewis because Dr. Lewis’ fees were high and she did not know Dr. Lewis. Id.
Dr. Lewis called Rosenberg after Doe missed her appointment. Id. Rosenberg’s
secretary then called Doe asking her come to Rosenberg’s office. Id. Doe agreed to
come in, but was concerned she would be late for an appointment she had with her
gynecologist.

Id.

Upon seeing Doe, Rosenberg believed that Doe’s psychological

condition had severely deteriorated since he last saw her. Id. When Rosenberg asked
Doe if they could discuss her situation, Doe appeared frightened to enter his office and
ran away as Rosenberg attempted to speak with her. Id. Rosenberg believed Doe was
experiencing a paranoid psychotic episode and presented a potential danger to herself.
Id. at 346-47. Rosenberg called Dr. Lewis to discuss Doe and her behavior. Id. Dr.
Lewis recommended locating Doe and having hospital security escort Doe to the
psychiatric emergency room for an evaluation. Id. Rosenberg wrote a medical order
authorizing hospital security to transport Doe to Columbia Presbyterian Medical Center
(CPMC). Id.
Doe momentarily reappeared, but when Rosenberg tried to speak with her, she
became agitated and ran out of the office. Id. Rosenberg alerted security. Id. Doe
claims she left Rosenberg’s office because she did not want to discuss her blood test
9

results in the waiting room and did not want to be late for her gynecological
examination.

Id.

She firmly maintained that she never appeared agitated in

Rosenberg’s presence and she was never a threat to herself or others. Id.
When Doe returned to Rosenberg’s office, security officers were present. Id.
Rosenberg told Doe she would be taken to the psychiatric emergency room so she
could be evaluated. Id. Rosenberg claims Doe’s delusion became so severe that Doe
accused him of being an imposter. Id. Doe ran away again and was later found lying
on the floor of the adjacent hospital building. Id. The supervising nurse in that building
asked Rosenberg to sign an order permitting the use of four-point restraints, if
necessary. Id. Doe was escorted to CPMC without the use of restraints. Id.
At the CPMC psychiatric emergency room, Doe was seen by Dr. Anne
Skomorossky and Dr. Lorraine Innes. Id. Both physicians certified Doe for involuntarily
confinement after determining she was dangerous and no adequate alternate forms of
treatment existed as required under New York Mental Hygiene Law (“MHL”) §9.27. Id.
Dr. Stan Arcow confirmed Drs. Skomorossky and Innes’ determination and Doe was
committed. Id. None of the physicians involved with Doe were state employees; CPMC
was a private hospital licensed to provide emergency psychiatric services and treat
mentally disabled persons. Id.
The defendants all moved for summary judgment on the theory they were not
state actors. See Id. Their motions for summary judgment were granted as the Court
determined the defendants were not state actors under the state compulsion, close
nexus/joint action or public function tests. Id. at 348-358.

10

Applying the state compulsion test, this Court held in Rosenberg:
Compliance with the procedures of the MHL, a statute that neither forces
nor encourages involuntary commitments, does not convert private action
into state action. New York’s involuntary commitment scheme puts in
place due process safeguards for the protection of the person confronted
with involuntary confinement—hence, the requirement of evaluations by
more than one physician and the reminder to physicians that they consider
alternate routes of treatment. The actual decision of whether commitment
is warranted, however, is left entirely to the sound medical judgment of the
physicians. Therefore, the actions of the Hospital Defendants cannot be
attributed to the State under a theory of state compulsion. Doe v.
Rosenberg at 352.
The Rosenberg Court also held that the MHL does not create a sufficiently close
nexus between the State and psychiatrists, such as Dr. Aldana-Bernier, to mandate
their classification as state actors. Id. at 352. Citing the United States Supreme Court,
the Rosenberg Court held “‘the mere fact that a business is subject to state regulation
does not by itself convert its action into that of the State for purposes of the Fourteenth
Amendment. Nor does the fact that the regulation is extensive and detailed…do so.’
Jackson, 419 U.S. at 350 (citation omitted); see Rockwell v. Cape Cod Hosp., 26 F.3d
254, 258 (1st Cir. 1994) (holding that private hospitals and physicians who involuntarily
committed plaintiff under Massachusetts statute were not state actors, noting that state
regulation, even if extensive, and receipt of federal funds do not establish state action);
Harvey v. Harvey, 949 F.2d 1127, 1132 (11th Cir. 1992) (finding licensing and regulation
insufficient to transform private hospitals into state actors for purposes of §1983
liability).” Id.
The purpose of the close nexus requirement is to ensure constitutional standards
are only applied when the State is actually responsible for the specific conduct of which
the plaintiff complains.

Rosenberg at 352; See Blum, 457 U.S. at 1004.
11

The

Rosenberg Court determined that simply because the MHL licenses, but does not
influence, private physicians and hospitals to commit involuntary commitments, its
relationship with private physicians and hospitals is insufficient to pass the close
nexus/joint action test. Rosenberg, at 352.
The Rosenberg Court also determined that involuntary commitment pursuant to
the MHL fails the public function test as the powers exercised by private physicians and
hospitals are not the sort that were traditionally the exclusive prerogative of the State.
Rosenberg; Jackson, 419 U.S. at 353.

A review of relevant history demonstrates

involuntary commitment is not a function traditionally exclusive to the State.

The

Rosenberg court addressed this at length, ultimately concluding “History reveals that
involuntary commitment has long been a private remedy…” Rosenberg, 996 F. Supp. at
356-57 aff’d 166 F.3d at 508; See McGugan 752 F.3d 224; see also, Sybalski v. Indep.
Group Home Living Program, Inc., 546 F.3d 255, 359-60 (2d Cir. 2008); Rockwell v.
Cape Cod Hosp., 26 F.3d 254, 258 (1st Cir. 1994); Harvey v. Harvey, 949 F.2d 1127,
1131 (11th Cir. 1992).
In the instant action, no evidence has been unearthed or elicited that Dr. AldanaBernier was employed by the State, that she was coerced or encouraged to involuntarily
hospitalize Schoolcraft by the State, that the State was a joint participant in Dr. AldanaBernier’s decisions, or that Dr. Aldana-Bernier engaged in conduct that is exclusively
the prerogative of the State. Similarly, there is no evidence Dr. Aldana-Bernier entered
into or was part of a conspiracy with any state actors, such as the New York City Police
Department, to involuntarily confine plaintiff. Accordingly, Plaintiff has failed to establish
state action on the part of Dr. Aldana-Bernier.
12

The allegations as to whether she

performed an inadequate evaluation prior to committing Plaintiff are irrelevant to a
determination under § 1983. See 42 U.S.C. §1983.
The Rosenberg court unambiguously ruled that when a decision to commit a
patient is “left entirely to the sound medical judgment of physicians”, no state action can
be found. Rosenberg, 996 F. Supp. at 352; see also, Blum, 457 U.S. at 1008 (holding
that a state is not liable for determinations that “ultimately turn on medical judgments
made by private parties according to professional standards that are not established by
the State.”). How plaintiff was transported to the hospital and the presence of police
officers in the medical emergency room are irrelevant so long as the examination
performed by Dr. Aldana-Bernier was free from state influence. Here, Plaintiff has failed
to adduce any state involvement in connection with Dr. Aldana-Bernier’s examination.
Dr. Aldana-Bernier’s actions in this case were purely private and based on her
own medical judgment.

She did not consult with any police officer in relation to

formulating and rendering a medical opinion concerning plaintiff. Similarly, Dr. AldanaBernier was not involved in any capacity in bringing plaintiff to Jamaica Hospital. Her
medical evaluation of plaintiff has no connection to any actions taken by the police. As
her terminations were left “entirely to [her] sound medical judgment,” the possibility of
state influence is foreclosed.
Plaintiff’s own psychiatric expert, Dr. Roy Lubit, claims it was evidence of medical
malpractice that Dr. Aldana-Bernier failed to contact anyone from the NYPD, including
IAB, to discuss plaintiff’s allegations. Plaintiff cannot claim Dr. Aldana-Bernier was a

13

state actor for purposes of §1983, but also claim she committed malpractice by failing to
speak with anyone from the NYPD concerning plaintiff.
Additionally, there is no evidence Dr. Aldana-Bernier was involved in some sort
of conspiracy with anyone from the New York City Police Department concerning
plaintiff.

It is impossible for two parties to be involved in a conspiracy together to

commit plaintiff against his will when they never communicate with each other, let alone
about involuntarily committing plaintiff. Further, in his Second Amended Complaint,
plaintiff alleges the NYPD defendants conspired to, and intentionally falsified evidence,
it submitted to the Jamaica Hospital staff for the sole purpose of involuntarily committing
plaintiff. (Ex. A to Callan Decl. at ¶ 210). If Dr. Aldana-Bernier was involved in some
sort of conspiracy with the NYPD, there would be no need for the NYPD to falsify
evidence in order to trick Dr. Aldana-Bernier into involuntarily committing plaintiff.
As the Second Circuit in Hogan held, a private physician’s conduct does not fall
within any of the tests for determining when private conduct can be attributed to the
state.

Hogan 346 Fed. Appx. at 629; See Doe v. Rosenberg, 996 F. Supp. 343

(S.D.N.Y. 1998). The potential factual differences, to the extent they exist, between the
instant matter and the facts in McGugan, Rosenberg, Hogan, and Jane Doe v. Harrison,
254 F. Supp.2d 338 (S.D.N.Y. 2003), are immaterial to the determination of whether Dr.
Aldana-Bernier was a state actor.
The recent Second Circuit decision in McGugan v. Aldana-Bernier explicitly
reaffirms the reasoning set forth in Rosenberg and also clarifies that the involvement of
police in the process that culminates in an involuntary commitment does not turn a

14

private physician into a state actor. See McGugan v. Aldana-Bernier, 752 F.3d 224 (2d
Cir. 2014).
In McGugan, plaintiff boarded a red-eye flight from San Francisco to New York
City, John F. Kennedy Airport, on July 24, 2008. Id. at 227. McGugan began coughing
uncontrollably and asked to be moved to a less crowded area of the plane to avoid
bothering nearby passengers, but a flight attendant denied her request. Id. McGugan
repeated her request “using stronger language.” Id. Rather than grant her request, the
flight attendant moved another passenger from her row leaving her in a row by herself.
McGugan fell asleep and did not wake up until after the plane had landed and other
passengers had exited. Id. When she woke up, three police officers were standing
over her.

Id.

They took her to an airport police station for questioning; she was

handcuffed to a wall. Id.
After the officers finished questioning McGugan, an unidentified man advised her
she would be taken to Jamaica Hospital Medical Center (“JHMC”). Id. JHMC is a
private hospital receiving federal funds. Id. It is licensed to provide psychiatric services
by the New York State Office of Mental Health. Id. During the trip to JHMC, one of two
government officials injected McGugan with medication without her consent after
allegedly erroneously determining she was a danger to others. Id. The medication
sedated her; she woke up restrained to a hospital bed in JHMC. Id.
When McGugan arrived at the emergency room still sedated, Dr. Bacares wrote
an order for the forcible administration of medication on an immediate basis. Id. Dr.
Mahmudur also wrote an order permitting forcible administration of medication on an

15

“‘as needed[] basis for severe agitation.’” Id. As a result of this order, McGugan was
injected multiple times with a combination of Haldol, Benadryl and Ativan. Id.
Starting on July 25, 2008, JHMC staff attempted to gather information from
McGugan. Id. at 227-28. They learned McGugan was dating someone named “Chris.”
Id. at 228. For reasons not explained in McGugan’s complaint, JHMC staff mistakenly
believed McGugan was referring to “Kris Dickman”, an ex-boyfriend. Id. JHMC staff
called Dickman who told them he was not dating McGugan and that she had thrown a
metal object at him, which compelled him to seek medical attention. Id. Based on this
conversation, the clinical staff believed McGugan “was suffering from delusions of a
romantic nature.” Id.
Dr. Aldana-Bernier performed a psychiatric evaluation on McGugan while she
was still sedated. Id. Based on this evaluation, Dickman’s statement and McGugan’s
apparent uncooperative refusal to answer questions, Dr. Aldana-Bernier certified
McGugan as having a mental illness likely to result in substantial harm to herself or
others. Id. As a result, McGugan was subjected to involuntary admission to JHMC
under MHL § 9.39. Id.
McGugan alleged Dr. Aldana-Bernier’s assessment of her dangerousness was not
“minimally competent” as Dr. Aldana-Bernier failed to ask McGugan relevant questions,
failed to recognize McGugan’s “uncooperative” behavior was only the result of heavy
sedation and failed to perform an appropriate risk assessment. Id. McGugan also
alleged Dr. Aldana-Bernier “performed a deficient assessment because she stereotyped
McGugan as dangerous based on her perception that McGugan was mentally ill.” Id.

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Dr. Hovanesian certified McGugan for further confinement under §9.39, on July 26,
2008. Id. Dr. Hovanesian determined McGugan was a danger to herself or others on
the basis of Dickman’s statements. Id. McGugan was confined at JHMC until July 30,
2008. Id. She claims that if any of the defendants performed their duties properly, they
would have realized she was never a danger to herself or others and should never have
been certified for forcible sedation or involuntarily hospitalization. Id.
McGugan offered four arguments for the Second Circuit to distinguish or overrule
Doe v. Rosenberg’s holding “that private health care professionals and a private
hospital did not engage in state action when they involuntarily committed Doe to the
psychiatric ward of Columbia Presbyterian Medical Center”. Id. at 229; Doe v.
Rosenberg, 166 F.3d 507, 508 (2d Cir. 1999). The Second Circuit determined all four of
the proffered reasons were meritless. McGugan at 229-30.
The first reason McGugan offered was that in her case, unlike Rosenberg, she was
involuntarily hospitalized after state actors transported her to JHMC. Id. at 230. The
McGugan court held that these allegations, without more, could not affect the state
action analysis. Id. The Second Circuit noted McGugan did not allege the state actors
requested, much less compelled, JHMC or its staff to involuntarily hospitalize her. Id.
Further, the Second Circuit could not “discern any other reason why the conduct of
private actors should become attributable to the state merely because it follows in time
the conduct of state actors.” Id.
The Second Circuit's complete denial of this reason is applicable to the instant
matter. Id. Even if plaintiff claims that he was taken to JHMC on orders of the New

17

York City Police Department, that fact is irrelevant to state action analysis. Id. Further,
there is not a scintilla of evidence produced that any state actors, including the NYPD,
requested or compelled Dr. Aldana-Bernier to hospitalize plaintiff. Id. Plaintiff's claims
for medical malpractice, including the opinion by his own psychiatric expert, Dr. Roy
Lubit, indicate Dr. Aldana-Bernier committed malpractice due to her failure to speak with
anyone at the police department about plaintiff's claims. Id. The Second Circuit clearly
holds that Dr. Aldana-Bernier's actions are not attributable to the state simply because
they followed the actions of the NYPD. Id.
McGugan's second reason to overturn Rosenberg, was that, unlike in Rosenberg,
she was hospitalized pursuant to a "complex scheme for evaluating, detaining and
treating people with mental illness." Id. The Second Circuit disagreed and held the
plaintiffs in Rosenberg and McGugan were involuntarily hospitalized pursuant to a
system where hospitals, subject to extensive regulation by the state, were permitted to
detain patients certified to require involuntary treatment.

Id.

The facts and

circumstances in the instant matter are not distinguishable from Rosenberg or
McGugan. Id. Nothing in the present case affects state action analysis or indicates the
state had so close a nexus to the private conduct that "it [could] be said that the State is
responsible for the specific conduct of which the plaintiff complains." McGugan at 230
quoting Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982).
McGugan's third reason was that Rosenberg is no longer binding precedent because
of three intervening decisions. Id. The Second Circuit held that none of the three cases
cited by McGugan, including one from another circuit, cast any doubt on the validity of
Rosenberg. Id.
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The last reason offered by McGugan was that Rosenberg was a flawed decision. Id.
at 230-31. The Second Circuit did not believe McGugan identified any fatal flaws in
Rosenberg. Id. at 230.
The facts in the instant matter are not sufficient to create a different outcome in
this matter than those reached in Rosenberg, Hogan or McGugan.
In Jane Doe v. Harrison, 254 F. Supp. 2d 338 (S.D.N.Y. 2003), plaintiff called
EMS after experiencing signs of stress. Id. at 341. EMS took her to a private hospital
where she was evaluated. Id. The private hospital physicians determined she was a
danger to herself and involuntarily admitted her pursuant to § 9.39 of the Mental Health
Law. Id. The Court, after discussing the three tests used to determine when private
conduct can be properly considered state action, held that “under all three of these
tests, involuntary commitment by a private party pursuant to state statute does not
convert private conduct into state action for purposes of section 1983.” Id. at 342. The
court went on to state that the facts of the case were similar to Rosenberg and thus
were subject to the same holding of non-state action. Id. The facts of Harrison are very
similar to those in the instant matter. See Harrison. As such, it is clear that Dr. AldanaBernier’s medical decision to admit Plaintiff to a private hospital pursuant to § 9.39 of
the Mental Hygiene Law is in no way considered state action for the purposes of §
1983.
There is no evidence that the New York City Police Department participated in
Dr. Aldana-Bernier’s evaluation of Mr. Schoolcraft or that her decision was in any way
influenced directly by the police. To the contrary, Mr. Schoolcraft’s own psychological

19

expert, Dr. Roy Lubit, claims in his expert report and during his deposition that Dr.
Aldana-Bernier’s failure to contact IAB or other officers within the NYPD constitutes
malpractice. Plaintiff cannot both claim that a failure to contact or seek information from
the NYPD constitutes medical malpractice and that Dr. Aldana-Bernier was a state actor
when she made her decision to keep Mr. Schoolcraft at Jamaica Hospital for further
evaluation.
The Second Circuit has clearly held that private physicians and hospitals do not
become state actors when they determine an individual should be involuntarily
hospitalized on an emergency basis pursuant to Section 9.39 of New York's Mental
Hygiene Law. See, e.g., Johnson v. Unity Health Sys., 08-CV-6258, 2010 U.S.Dist.
LEXIS 30727 (W.D.N.Y. March 30, 2010); Edwards v. Baptiste, 06-CV-00952, 2006
U.S. Dist. LEXIS 89147 (D.Conn. December 11, 2006). MHL §9.39 does not encourage
involuntary commitment. See Mental Hygiene Law §9.39. Therefore, there is no state
compulsion to involuntarily commit patients.
Dr. Aldana-Bernier has established she is entitled to summary judgment to
dismiss plaintiff's cause of action under §1983. Dr. Aldana-Bernier is not a state actor
and she did not operate under the color of state law. There is no close nexus between
the State and Dr. Aldana-Bernier's decision concerning plaintiff.

The involuntary

admission of patients has traditionally been the purview of private actors and has not
traditionally been the prerogative of the state. There is no evidence any state actor
exercised coercive power or has provided such significant encouragement, either overt
or covert, that the individual’s action can only be seen as that of the State. Dr. Aldana-

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Bernier did not have any interactions with anyone from the NYPD, or any other
governmental agency, in evaluating plaintiff.
POINT III
THERE IS NO EVIDENCE DR. ALDANA-BERNIER’S ALLEGED ACTIONS AND/OR
OMISSIONS ARE SUFFICIENT TO ESTBALISH A CLAIM FOR INTENTIONAL
INFLICTION OF EMOTIONIAL DISTRESS UNDER NEW YORK STATE LAW
Plaintiff has not adduced sufficient evidence to sustain a claim for the intentional
infliction of emotional distress under New York law.
To establish a claim of intentional infliction of emotional distress under New York
law, a plaintiff must prove: “(i) extreme and outrageous conduct; (ii) intent to cause, or
disregard of a substantial probability of causing, severe emotional distress; (iii) a causal
connection between the conduct and injury; and (iv) severe emotional distress.”
Medcalf v. Walsh, 938 F. Supp. 2d 478, 488 (S.D.N.Y. 2013) (citing Howell v. New York
Post Co., 81 N.Y.2d 115 (N.Y. 1993)). In New York, “the tort of intentional infliction of
emotional distress is extremely disfavored. Only the most egregious conduct has been
found sufficiently extreme and outrageous to establish this tort.” Id. New York courts
have recognized claims for intentional infliction of emotional distress “only where the
conduct has been so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized society." Stuto v. Fleishman, 164 F.3d 820 (2d Cir. N.Y. 1999).
This strict standard has been "set deliberately high to ensure that a plaintiff's claim of
emotional distress is genuine and to dissuade litigation where only bad manners and
hurt feelings are involved." Thai v. Cayre Grp., 726 F. Supp. 2d 323, 336-37 (S.D.N.Y.
2010). “A court may determine, as a matter of law, that the alleged behavior is not
21

sufficiently outrageous to warrant the imposition of liability.” Medcalf at 488 (citing
Howell).
There is simply no evidence to support plaintiff’s claim for intentional infliction of
emotional distress.

Dr. Aldana-Bernier’s decision, based on her sound medical

judgment, is not conduct so outrageous in character as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
society. See Stuto v. Fleishman, 164 F.3d 820. Plaintiff also failed to develop any
evidence that Dr. Aldana-Bernier intended to cause, or disregarded to a substantial
probability of causing, severe emotional distress to plaintiff.

Dr. Aldana-Bernier’s

medical decision concerning plaintiff was based on her review of notes created by prior
treating psychiatrists, doctors and nurses who treated plaintiff. She carefully weighed
all the evidence and made a decision. Although plaintiff may disagree with the basis
and correctness of Dr. Aldana-Bernier’s decision, he has failed to demonstrate it rose to
the level of satisfying a cause of action for intentional infliction of emotional distress.
POINT IV
AS DR. ALDANA-BERNIER HAS ESTABLISHED SHE IS ENTITLED TO THE
DISMISSAL OF PLAINTIFF’S §1983 CLAIMS, THE REMAINING STATE CLAIMS
SHOULD BE REMANDED TO STATE COURT
"[W]hen all bases for federal jurisdiction have been eliminated from a case so
that only pendent state claims remain, the federal court should ordinarily dismiss the
state claims." Clorofilla v. Town of New Castle, 106 Fed. Appx. 90, 91 (2d Cir. N.Y.
2004)(citing Baylis v. Marriott Corp., 843 F.2d 658 (2d Cir. 1988)). “[W]hen all federallaw claims are eliminated before trial, the balance of factors to be considered under the
pendent jurisdiction doctrine -- judicial economy, convenience, fairness, and comity -22

will point toward declining to exercise jurisdiction over the remaining state-law claims."
Baylis at 665. In cases where the state claims originally reached the federal forum by
removal from a state court, Congress has mandated that “the district court remand the
action if at any time before final judgment the basis for federal jurisdiction ceases to
exist . . . .” Villano v. Kohl's Dep't Stores, Inc., 362 F. Supp. 2d 418, 420 (S.D.N.Y.
2005) (citing 28 U.S.C. § 1447(c)).
As Dr. Aldana-Bernier has demonstrated she is entitled to dismissal of all of
plaintiff’s claims under §1983, there are no remaining federal claims before the Court.
As such, plaintiff’s remaining state claims should be remanded to New York State
Supreme Court.
POINT V
PLAINTIFF’S CLAIM FOR DECLARATORY JUDGMENT AGAINST DR. ALDANABERNIER MUST BE DISMISSED AS THE COURT DID NOT GRANT HIM
PERMISSION TO AMEND HIS COMPLAINT TO INCLUDE A CLAIM OF RELIEF FOR
DECLARATORY JUDGMENT AGAINST HER
It is undisputed that plaintiff did not include a claim for declaratory judgment as a
form of relief in his Second Amended Complaint.

(Callan Decl. Exhibit A). Judge

Sweet’s Opinion and Order partially granting plaintiff’s motion to amend did not grant
the motion to amend the complaint to include a claim for declaratory judgment against
Dr. Aldana-Bernier. (Callan Decl. Exhibit F). As Judge Sweet wrote in his Opinion and
Order:
Plaintiff moves, over JHMC’s objection, for leave to add a claim seeking
declaratory and injunctive relief, specifically, a declaration that the City
Defendants’ conduct was illegal and an injunction requiring JHMC and the City
Defendants to expunge from Schoolcraft’s medical files any ‘record or a finding
23

that Officer Schoolcraft was mentally ill, dangerous or otherwise a person who
required involuntary commitment to a psychiatric ward.’ Pl’s Mem. In Supp’t 15.
(Callan Decl. Exhibit F at pg 13).
As the decision makes clear, the motion to amend to add a claim of relief for
declaratory judgment was limited to a claim against the City and for an injunction
against the City and Jamaica Hospital.

(Callan Decl. Exhibit at pg 13).

Plaintiff’s

attempt to seek declaratory relief against Dr. Aldana-Bernier was not granted by the
Court, to the extent he actually even sought such relief, and therefore must be
dismissed. To the extent plaintiff claims he moved for declaratory relief against Dr.
Aldana-Bernier, and Judge Sweet actually granted that portion of his motion, then the
claim for declaratory relief must be dismissed as to all of plaintiff’s claims under §1983
and intentional infliction of emotional distress.
CONCLUSION
For the foregoing reasons, Dr. Aldana-Bernier respectfully requests the Court
grant her partial motion for summary judgment pursuant to FED. R. CIV. P. 56 in its
entirety as well as for other relief as deemed appropriate by the Court.
Dated:

New York, New York
January 30, 2015
Respectfully Submitted,
CALLAN, KOSTER, BRADY, BRENNAN & NAGLER,
LLP
__/s/__Paul_F._Callan______________________
By: PAUL F. CALLAN, ESQ. (PFC2005)
Of Counsel
Attorneys for Defendant
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DR. LILIAN ALDANA-BERNIER
One Whitehall Street, 10th Floor
New York, New York 10004
[phone]
[e-mail]

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