Schoolcraft v. The City Of New York et al

Filing 367

AMENDED MEMORANDUM OF LAW in Support re: 366 AMENDED MOTION for Summary Judgment and other relief. . Document filed by Isak Isakov. (Lee, Brian)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------------------------x
ADRIAN SCHOOLCRAFT,

10CV6005(RSW)

Plaintiff,
AMENDED
MEMORANDUM
OF LAW

-againstTHE CITY OF NEW YORK, et al.,
JAMAICA HOSPITAL MEDICAL CENTER, DR. ISAK
ISAKOV, Individually and in his Official Capacity, DR.
LILIAN ALDANA-BERNIER, Individually and in her Official
Capacity, et al.,
Defendants.
----------------------------------------------------------------------------------x

AMENDED MEMORANDUM OF LAW IN SUPPORT OF THE MOTION FOR
SUMMARY JUDGMENT DISMISSING ALL FEDERAL CLAIMS AGAINST THE
DEFENDANT ISAK ISAKOV, M.D.

Date of Service:

January 30, 2015

Of counsel:

Brian E. Lee (BL9495)

IVONE, DEVINE & JENSEN, LLP
ATTORNEYS AT LAW
2001 MARCUS AVENUE - SUITE N100
LAKE SUCCESS, NEW YORK 11042

TABLE OF CONTENTS
Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Statutes and Rules.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Pleadings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Plaintiff’s claims against Dr. Isakov. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Preliminary Factual Allegations as to Dr. Isakov.. . . . . . . . . . . . . . . . . . . . . . 2
Federal Claims.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Pendent State Claims .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Standards for Summary Judgment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
POINT I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
THE MOTION FOR DISMISSAL SHOULD BE GRANTED ISAK ISAKOV,
M.D. IS NOT A STATE ACTOR
Requirement of State Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Dr. Isakov is not a State Actor.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Prior Actions of the Police. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
The conspiracy claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
POINT II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
THE STATE CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS SHOULD BE DISMISSED
POINT III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
IF THE FEDERAL CLAIMS ARE DISMISSED, THE PENDENT STATE
CLAIMS SHOULD ALSO BE DISMISSED

POINT IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
PLAINTIFF'S CLAIM FOR DECLARATORY JUDGMENT AGAINST DR.
ISAKOV 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 HIM

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TABLE OF AUTHORITIES
Table of Cases
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). . . . 7, 16
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 985,
143 L.Ed.2d 130 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Anderson v. Liberty Lobby, Inc. ., 477 U.S. 242, 248, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Bhatia v. Yale School of Medicine, 347 Fed.Appx. 663 (2d Cir. 2009). . . . . . . . . . . . . . . . . . . 16
Blum v. Yaretsky, 457 U.S. 991. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). . 19
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).. . . . . . 7
Doe v Rosenberg, 996 F.Supp 343 (S.D.N.Y. 1998)(Sweet, U.S.D.J.). . . 1, 10, 11, 12, 13, 14, 18
Doe v Rosenberg, 166 F.3d 507 (2d Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10, 14
Dwares v. City of New York, 985 F.2d 94,98 (2d Cir.1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156-57, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978).. . . . 12
Genao v. Avon Salon & Spa, 2008 WL 190605 (S.D.N.Y.,2008). . . . . . . . . . . . . . . . . . . . . . . . . 7
Hanig v. Yorktown Cent. Sch. Dist., 384 F.Supp.2d 710, 725 (S.D.N.Y.2005).. . . . . . . . . . . . 19
Howell v. New York Post Co., 81 N.Y.2d 115 (N.Y. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Jackson v. Metro. Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449, 454, 42 L.Ed.2d 477 (1974). . . 9
Kolari v. New York Presbyterian Hospital, 455 F.3d 118 (2d Cir.2006).. . . . . . . . . . . . . . . . . . 19
Lewis v. Krymkevich, Slip Copy, 2009 WL 4884093 (S.D.N.Y., 2009). . . . . . . . . . . . . . . . . . . 14
Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). . . . 11
McGugan v Aldana Bernier, 752 F.3d 224 (2d Cir. 2014).. . . . . . . . . . . . . . . . . . . . 1, 10, 14, 15
i

Medcalf v. Walsh, 938 F. Supp. 2d 478, 488 (S.D.N.Y. 2013). . . . . . . . . . . . . . . . . . . . . . . 17, 18
Monaco v. Stone, 2002 WL 32984617 (E.D.N.Y.,2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir.1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Rendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S.Ct. 2764, 2772,
73 L.Ed.2d 418 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11
Rodriguez v. City of New York, 72 F.3d 1051, 1063 (2d Cir.1995). . . . . . . . . . . . . . . . . . . . . . 11
Sajimi v. City of New York, Slip Copy, 2011 WL 135004 (E.D.N.Y., 2011).. . . . . . . . . . . . . . . 9
Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17
Stuto v. Fleishman, 164 F.3d 820 (2d Cir. N.Y. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Sybalski v. Independent Group Home Living Program, Inc., 546 F.3d 255 (2d Cir., 2008).. . . 14
Thai v. Cayre Grp., 726 F. Supp. 2d 323, 336-37 (S.D.N.Y. 2010). . . . . . . . . . . . . . . . . . . 17-18
Tops Markets, Inc. v. Quality Markets, Inc., 142 F.3d 90, 102-03 (2d. Cir. 1998). . . . . . . . . . 19
Turturro v. Continental Airlines, 334 F.Supp.2d 383, 395-398 (S.D.N.Y.,2004). . . . . . . . . . . 14
United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). . . . . . . 11
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000). . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ii

Table of Statutes and Rules
28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
28 U.S.C. § 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
28 U.S.C. § 1367. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19, 20
42 U.S.C. § 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 7, 8, 11, 18
42 U.S.C. § 1988. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Fed.R.Civ.P. 56(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
New York Mental Hygiene Law § 9.27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14
New York Mental Hygiene Law § 9.39. . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 5, 10, 11, 12, 13, 14

iii

PRELIMINARY STATEMENT
This Memorandum of Law is respectfully submitted on behalf of defendant Dr. Isak
Isakov for summary judgment dismissing the 1983 claims. Dr. Isakov is a private attending
physician who exercised his independent medical judgment in involuntarily hospitalizing
the plaintiff in this case. That action does not constitute state action providing federal
jurisdiction over the 1983 claims.
The law in this Circuit has been absolutely clear in this regard since this Court’s
seminal decision in Doe v Rosenberg, 996 F.Supp 343 (S.D.N.Y. 1998)(Sweet, U.S.D.J.), aff’d
166 F.3d 507 (2d Cir. 1999). A series of cases in the Second Circuit, and the Southern and
Eastern Districts of New York all have followed this precedent. Any remaining questions
as to whether this is still the law in the Second Circuit were answered when the authority
of Doe was recently reaffirmed by the Second Circuit in McGugan v Aldana Bernier, 752 F.3d
224 (2d Cir. 2014).
McGugan also addressed and dismissed another pertinent issue for the instant case.
The Second Circuit found that even where state actors transported the patient to Jamaica
Hospital, as here, this would not affect the state action analysis as the plaintiff:
. . . does not allege that the state actors requested, much less
compelled JHMC or its staff to involuntarily hospitalize her.
Nor can we 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.
752 F.3d at 230.
While the facts here are undoubtedly unique, they do not change the ultimate
analysis that there is no state action conferring federal jurisdiction where a private
1

physician exercising private medical judgment involuntarily hospitalizes a patient
pursuant to New York Mental Hygiene Law §9.39.
Additionally, the motion also seeks summary judgment on one state claim and
further requests that this Court not exercise supplemental jurisdiction on the remaining
state claims if the federal claims are dismissed, and seeks dismissal of a claim for
declaratory relief as will be explained in Point IV.
THE PLEADINGS
Plaintiff commenced this action by the filing of the Complaint filed on August 10,
2012 (Court Docket 1), and Dr. Isakov answered that Complaint on September 7, 2010
(Docket 18). An amended complaint was filed on September 13, 2010 (Docket 21) and
answered by this defendant on October 27, 2010 (Docket 39).
The Second Amended Complaint is attached as Exhibit A to the declaration of Brian
E. Lee (Docket 103). The defendant Isakov answered the Second Amended Complaint on
October 19, 2012 (Exhibit B)(Docket 111).
This memorandum has been updated at the direction of the Court to “file amended
summary judgment papers referencing the TAC rather than the SAC.” Court decision of
January 16, 2015, docket no. 340, page 17.
PLAINTIFF'S CLAIMS AGAINST DR. ISAK ISAKOV
Preliminary Factual Allegations as to Dr. Isakov
Paragraphs 20 and 21 allege that Dr. Isakov was physician duly licensed to practice
in the State of New York and had certain privileges at Jamaica Hospital Medical Center

2

(“JHMC”).

The answer served on behalf of Dr. Isakov admitted the paragraphs to the

extent that Dr. Isakov is a physician duly licensed in the State of New York, and that he
was an attending physician at JHMC.
Federal Claims Allegations
The only two federal claims clearly pleaded against Dr. Isakov are the seventh claim
for relief, involuntary confinement pursuant to 42 U.S.C. § 1983, and the ninth claim for
relief, violation of due process under 42 U.S.C.§ 1983. In between these two, the eighth
claim for relief is for conspiracy to violate plaintiff’s civil rights under 42 U.S.C. § 1983.
These will be discussed in that order.
The seventh claim for relief alleges that Dr. Isakov and co-defendant Dr. Bernier
unlawfully and involuntarily confined plaintiff in violation of his constitutional rights.
The ninth claim for relief alleges that Dr. Isakov and co-defendant Dr. Bernier
violated the substantive and procedural due rights of the plaintiff in involuntarily
hospitalizing him at Jamaica Hospital Medical Center.
The eighth claim for relief alleges that the unspecified defendants “conspired and
acted in concert to do whatever was necessary, lawful or not, to cause the arrest,
imprisonment, and involuntary confinement” of the plaintiff. We believe that this is not
pleaded against Dr. Isakov because of the more specified allegations in paragraph 294 of
the Third Amended Complaint, which alleges that the conspirators:
. . . (a) manufactured false evidence; (b) unlawfully entered
plaintiff’s home; (c) illegally seized plaintiff’s property; (d)
verbally and physically threatened plaintiff in an attempt to
silence him; (e) stalked at menaced plaintiff at his home; and
3

(b)[sic] pressured, bribed, coerced and induced individuals to
have plaintiff involuntarily confined to hospital treatment
without his consent or any lawful basis for doing so.
Indeed, it would appear that the claim, as pleaded, sets forth that the conspiracy involved
other defendants pressuring, bribing, coercing and inducing to effect the involuntary
hospitalization, acts that could not have been preformed by Dr. Isakov.
It should be noted that there are no allegations contained in the second amended
complaint that the actions taken by Dr. Isakov constituted state action as to warrant federal
jurisdiction. In the recent third amended complaint (“TAC”), the plaintiff slipped in an
allegation in paragraph 243, despite not making any request for relief in the motion papers
as against Dr. Isakov. That claim alleges that “. . . and the acts of JHMC and Defendants
Bernier and Isakov were taken under the assumed governmental authority and
responsibility to protect the public, in violation of New York Mental Hygiene Law §9.39.
To the extent the Court will permit this allegation to stand, it does not change the
fact that the facts clearly show that there was no state action as to Dr. Isakov.
Pendent State Claim Allegations
There are also pendent state claims pleaded against Dr. Isakov in the seventh claim
for relief under New York State law, medical malpractice; and arguably in the fifth claim
for relief under New York law, intentional infliction of emotional distress1.

1

It is arguable because the allegations of the TAC state the actions were committed
by defendants acting within (¶344) and in furtherance (¶345) of their employment at
Jamaica Hospital Medical Center (“JHMC”). Dr. Isakov was not an employee of JHMC
(Isakov affidavit pp. 2-3) so on their face the allegations do not pertain to him.
4

STATEMENT OF FACTS
The facts for this motion for Dr. Isakov are not lengthy and are summarized as
follows. Following a lengthy interaction with members of the New York City Police
Department (“NYPD”), Adrian Schoolcraft (hereafter "Schoolcraft") was brought to the
Jamaica Hospital Medical Center (hereafter ("JHMC") medical emergency room by EMS
personnel on October 31, 2009 (Exhibit C, JHMC Chart, pages 1, 2-3, 4, and numerous other
places in the chart).
Schoolcraft was transferred from the medical emergency room to the psychiatric
emergency room on November 1, 2009 (Exhibit C, JHMC Chart).
On November 3, 2009, Dr. Aldana-Bernier signed part 1 of the involuntary
admission papers for 9.39 admission under the New York State Mental Hygiene Law, thus
involuntarily confining Schoolcraft (Exhibit C, JHMC Chart, page 57). Schoolcraft was then
transferred to the psychiatric ward on the third floor of JHMC.
On November 4, 2009, Dr. Isak Isakov signed part 2 of the involuntary admission
papers for 9.39 admission under the New York State Mental Hygiene Law, thus confirming
the involuntary confinement of Schoolcraft (Exhibit C, JHMC Chart, page 58, affidavit of
Isak Isakov, M.D., page 8).
The annexed affidavit of Dr. Isakov, which is incorporated herein by reference
thereto, discusses his treatment in detail on November 4, 2009 (pages 6-9), November 5,
2009 (Page 9) and November 6, 2009, when Schoolcraft was discharged (pages 9-10). A
reading of the affidavit makes clear that Dr. Isakov carefully evaluated the patient, his

5

claims, his need for hospitalization, and did so free from constraint or undue influence.
Dr. Isakov had no contact with any New York City employees, including Police
Department, Fire Department, EMS, or any other NYC employee, with the exception of an
officer from the Internal Affairs Bureau (hereafter"IAB") (Affidavit of Isak Isakov, M.D.,
pages 2, 10-12; declaration of Brian E. Lee including quotation of testimony at depositions
of numerous NYC employees attesting to no such contact).
Dr. Isakov was at a family meeting with Schoolcraft and his father, Larry
Schoolcraft, which included, at the request of the Schoolcrafts, the officer from the IAB,
Licensed Mental Social Worker Colleen McMahon and Dr. Isakov ( Affidavit of Isak Isakov,
M.D., pages 2, 10-12).
The meeting was tape recorded(Source: Affidavit of Isak Isakov, M.D., page 11). The
IAB officer did not request, pressure or in any way influence the independent medical
judgment concerning Schoolcraft made by Dr. Isakov (Affidavit of Isak Isakov, M.D., pages
2, 10-12).
Dr. Isakov requested permission from Schoolcraft to obtain a copy of his prior
records from the police psychologist who had ordered taking his gun away(Source:
Affidavit of Isak Isakov, M.D., page 12). That request was denied by Adrian Schoolcraft
(Exhibit D, deposition of Adrian Schoolcraft, page436-437).
All of the decisions made by Dr. Isakov were the result of the exercise of his
independent professional medical judgment (Affidavit of Isak Isakov, M.D., pages 2, 4, 10).
STANDARDS FOR SUMMARY JUDGMENT

6

The standard for a motion for summary judgment requires a court to render
judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, 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.” Fed.R.Civ.P.
56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000).
As set forth by this Court in Genao v. Avon Salon & Spa, 2008 WL 190605
(S.D.N.Y.,2008), a material fact is “one that would ‘affect the outcome of the suit under the
governing law,’ and a dispute about a genuine issue of material fact occurs if the evidence
is such that ‘a reasonable jury could return a verdict for the nonmoving party.’ Anderson
v. Liberty Lobby, Inc. ., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); R.B. Ventures,
Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir.1997).” Genao at *2.
The initial burden to show that there are no such material facts in dispute is on the
movant, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970),
and can discharge this burden by demonstrating that there is an absence of evidence to
support the nonmoving party's case, Celotex, 477 U.S. at 325.
POINT I
THE MOTION FOR SUMMARY JUDGMENT
SHOULD BE GRANTED BECAUSE DR. ISAK
ISAKOV IS NOT A STATE ACTOR
The plaintiff’s claimed bases of jurisdiction are two-fold. First, 28 U.S.C. § 1331
which authorizes of civil actions arising out of the Constitution, laws and treaties of the

7

United States. Second, 28 U.S.C. § 1343 which authorizes jurisdiction of actions arising out
of 42 U.S.C. § 1983 and 42 U.S.C.. § 1988. In order for this jurisdiction to be valid, there
must be sufficient state action to invoke jurisdiction. Here neither the allegations of the
complaint, nor the facts as pleaded, nor any of the facts adduced during the lengthy
discovery in this action, provide a basis for federal jurisdiction, and thus fail to state a cause
of action.
Since the two actions clearly pleaded against Dr. Isakov (the seventh and ninth
causes of action), and the one other claim that plaintiff may claim is applicable (the eighth
cause of action for conspiracy) are all pleaded under 42 U.S.C. § 1983, the lack of state
action mandates dismissal of the federal claims against Dr. Isakov.
Requirement of State Action
In order to state a claim pursuant to United States Code Title 42 § 1983, “a plaintiff
must allege (1) that the challenged conduct was attributable at least in part to a person
acting under color of state law, and (2) that such conduct deprived the plaintiff of a right,
privilege, or immunity secured by the Constitution or laws of the United States.” Dwares
v. City of New York, 985 F.2d 94,98 (2d Cir.1993); Pitchell v. Callan, 13 F.3d 545, 547 (2d
Cir.1994).
For a deprivation of a right to be actionable under § 1983, “the conduct complained
of must have been committed by a person acting under color of state law,” and cannot be
applied to the actions of private individuals. Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.1994).
As the Supreme Court has held, “the under-color-of-state-law element of § 1983 excludes

8

from its reach merely private conduct, no matter how discriminatory or wrongful.” Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999)
(internal quotation marks omitted).
Although the under-color-of-state-law requirement can be applied to private
individuals in certain limited circumstances, such as where the private individual is
engaged in a “public function,” Jackson v. Metro. Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449,
454, 42 L.Ed.2d 477 (1974), or performs conduct that is “fairly attributable to the state,” Am.
Mfrs. Mut. Ins. Co., 526 U.S. at 51, 119 S.Ct. at 986, these exceptions are narrow.

The

Supreme Court has made clear that “the relevant question is not simply whether a private
group is serving a ‘public function.’ ... [T]he question is whether the function performed
has been ‘traditionally the exclusive prerogative of the State.’ ” Rendell-Baker v. Kohn, 457
U.S. 830, 842, 102 S.Ct. 2764, 2772, 73 L.Ed.2d 418 (1982) (quoting Jackson, 419 U.S. at 353, 95
S.Ct. at 454). See also, Sajimi v. City of New York, Slip Copy, 2011 WL 135004 (E.D.N.Y.,
2011). As will be seen, Dr. Isakov is a private actor not acting under color of state law and
thus the federal claims should be dismissed.
Dr. Isakov is not a State Actor
Plaintiff's claims in this action as to Drs. Isakov must necessarily fail because there
is no state action sufficent to confer federal jurisdiction. Indeed through the Second
Amended Complaint there was not even an allegation of state action as to their actions or
inactions. As set forth above, while there were allegations made against Dr. Isakov, none
of them alleged that he is a state actor, and none of the claims made against him could

9

even be construed as setting forth a basis that his actions constituted state action.
Simply stated, there is no state action permitting this case to survive against Dr.
Isakov. For the first time, in the TAC, in paragraph 243, the plaintiff inserted an allegation
that the acts of, inter alia, Dr. Isakov, were “taken under the assumed governmental
authority and responsibility to protect the public, in violation of accepted medical
standards and New York Mental Hygiene Law §9.39.” None of these new allegations
change the state action analysis. Indeed, in Doe v Rosenberg, 996 F.Supp 343 (S.D.N.Y. 1998)
(Sweet, U.S.D.J.), aff’d 166 F.3d 507 (2d Cir. 1999), this Court settled the issue as to whether
involuntary hospitalization pursuant to the Mental Hygiene Law constitutes state action.
It does not, as will be seen.
Thus, the argument that involuntary commitment pursuant to New York State
Mental Health Law is "state action" providing jurisdiction over 42 U.S.C. § 1983 claims was
rejected in the seminal decision of this Court, Doe v Rosenberg, 996 F.Supp 343 (S.D.N.Y.
1998)(Sweet, U.S.D.J.), aff’d 166 F.3d 507 (2d Cir. 1999). The finding in that case effectively
ends plaintiff's action in this case. If there remained any question as to whether this is still
good law in the Second Circuit, any such doubts were laid to rest by McGugan v Aldana
Bernier, 752 F.3d 224 (2d Cir. 2014).
In Doe, supra., the Second Circuit affirmed the decision of the District Court (996 F.
Supp. 343 [S.D.N.Y. 1998]) "for substantially the reasons set forth in the district court's
comprehensive and scholarly opinion", and found that involuntary commitment pursuant
to the New York State Mental Hygiene Law does not constitute state action sufficient to

10

sustain federal jurisdiction.
As in the instant case, plaintiff claimed that by committing a patient pursuant to the
Mental Hygiene Law, there was sufficient state action. The Court below in Doe v Rosenberg,
Sweet, J., held that the statute could not possibly be read as mandating the action of
involuntary commitment, and that it clearly required the exercise of professional medical
judgment. Id., 996 F.Supp. 343 at 354-358. As to the exercise of medical judgment under
Mental Hygiene Law § 9.39, see also, Rodriguez v. City of New York, 72 F.3d 1051, 1063 (2d
Cir.1995).
42 U.S.C. § 1983, entitled, "Civil action for deprivation of rights" provides as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress . . .
The Court in Doe, supra., clearly set forth what the plaintiff in that action, and in this
action, would need to prove in order to prevail based upon this statute (996 F. Supp. at
348):
The constitutional sections creating the substantive rights in
this case are the Fourth and Fourteenth Amendments. Because
the Amendments are directed at the States, they can be
violated only by "state action" and not by the conduct of a
private actor. "Careful adherence to the `state action'
requirement preserves an area of individual freedom by
limiting the reach of federal law and federal judicial power."
Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102 S.Ct. 2744, 73
L.Ed.2d 482 (1982). Section 1983's "under color of law"
11

requirement is treated "`as the same thing' as the `state action'"
requirement under the Constitution. Rendell-Baker v. Kohn, 457
U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (quoting United
States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d
267 (1966)).
To prevail in this 1983 action, Doe must show (1) that
Defendants deprived her 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. See Flagg Bros., Inc.
v. Brooks, 436 U.S. 149, 156-57, 98 S.Ct. 1729, 56 L.Ed.2d 185
(1978).
This Court then correctly determined that while involuntary confinement constitutes a
significant deprivation of liberty, the actions of a private physicians who act pursuant to
the statute in view cannot be considered the actions of the state invoking the protection of
42 U.S.C. § 1983, and therefore, the individual physicians could not be considered state
actors. Doe, supra., 996 F. Supp. at 348-358. In so finding, the court rejected arguments
advanced by plaintiff that the state compulsion, close nexus/joint action and public
function tests were applicable. Therefore, the court granted summary judgment and also
dismissed the pendent state claims.
The essential facts in this case are no different and require the same finding. As the
Doe court considered in detail the relevant arguments made by plaintiff, and those same
arguments are applicable herein, we will not reiterate the arguments set forth therein, but
will merely address some issues that require further explanation.
While a different statute was considered in Doe v Rosenberg, supra (New York Mental
Hygiene Law § 9.27), the language in the critical portion of the statute is the same. The
statute involved here, Mental Hygiene Law § 9.39, provides in pertinent part that:
12

§ 9.39 Emergency admissions for immediate observation, care, 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 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
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 qualifies 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 (emphasis
supplied).
It should be noted that section 9.39, involved here, was the same statute invoked in
McGugan, supra.

13

The court in Doe, supra., continued, at 996 F. Supp. 349-350, that the "use of the word
‘may' in the Statute is convincing of the lack of encouragement or exercise of coercive
power by the state, factors that must exist under the state compulsion test. See Blum [v.
Yaretsky], 457 U.S. [991] at 1004. Even though the MHL provides the legal framework under
which physicians may involuntarily commit a patient by creating procedures and
standards for commitment, as Doe points out, it leaves the decision to commit completely
to the physician's discretion."
The same standard applies here. The MHL statute (the 9.27 considered by Doe, and
the 9.39 considered by McGugan and here) is couched in terms of ‘may' and the
confinement provisions, as in Doe, require the act of professional medical judgment. In
concluding that this combination of factors, among others, cannot make the action of the
involved parties actions of the State under a theory of state compulsion, this Court found
that: "Compliance with the procedures of the MHL, a statute that neither forces nor
encourages involuntary commitments, does not convert private action into state action."
996 F. Supp at 352.
Other cases coming to the same reasoning, that the three-pronged tests of state
compulsion, close nexus/joint action and public function are not met in similar situations
include Monaco v. Stone, 2002 WL 32984617 (E.D.N.Y.,2002); Lewis v. Krymkevich, Slip Copy,
2009 WL 4884093 (S.D.N.Y., 2009); Turturro v. Continental Airlines, 334 F.Supp.2d 383, 395398 (S.D.N.Y.,2004). See also, Sybalski v. Independent Group Home Living Program, Inc., 546
F.3d 255 (2d Cir., 2008). As set forth above, the reasoning of Doe was reaffirmed by the

14

Second Circuit in McGugan v Aldana-Bernier, 752 F.3d 224 (2d Cir. 2014).
Prior Actions of the Police
The fact that the plaintiff was brought to the hospital by the NYPD does not change
the analysis. Again, any such claim, were it to be made, was put to rest by the Second
Circuit in McGugan v Aldana Bernier, 752 F.3d 224, 230 (2d Cir. 2014), where it was held:
First, she argues that this case is unlike Rosenberg because her
involuntary hospitalization occurred after state actors
transported her to JHMC. We do not see how these allegations,
without more, could affect the state action analysis here.
McGugan does not allege that the state actors requested, much
less compelled JHMC or its staff to involuntarily hospitalize
her. Nor can we 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.
In this case, Schoolcraft was brought to the hospital on the order of the NYPD on October
31, 2009. However, once the patient was at JHMC, there is no allegation nor any proof
whatsoever that the NYPD or any other governmental agency suggested, requested or
compelled the involuntary hospitalization. Rather, as the affidavit of Dr. Isakov attests, he
first saw the patient on November 4, 2009, and came to a reasoned evaluation and
exercised his independent professional medical judgment in involuntarily hospitalizing
Mr. Schoolcraft.
The conspiracy claim
The eight claim in this case pleads a conspiracy to violate plaintiff’s civil rights. As
mentioned above, a clear reading would appear to show that this claim is not pleaded
against Dr. Isakov. Thus, paragraph 294 of the TAC alleges that the conspirators:

15

. . . (a) manufactured false evidence; (b) unlawfully entered
plaintiff’s home; (c) illegally seized plaintiff’s property; (d)
verbally and physically threatened plaintiff in an attempt to
silence him; (e) stalked at menaced plaintiff at his home; and
(b)[sic] pressured, bribed, coerced and induced individuals to
have plaintiff involuntarily confined to hospital treatment
without his consent or any lawful basis for doing so.
Thus, when plaintiff claims two paragraphs earlier (¶ 292) that “Defendants conspired and
acted in concert to do whatever was necessary, lawful or not, to cause the arrest,
imprisonment, and involuntary confinement of plaintiff ADRIAN SCHOOLCRAFT, ” that
should not include the medical defendants in general, and this defendant in particular.
In the event the Court believes that the claim as pleaded does include this
defendant, it must be dismissed because of (1) the lack of state action providing jurisdiction
for the same reasons as above; and (2) the facts as set forth herein clearly show that there
was no such conspiracy involving Dr. Isakov. His affidavit makes it clear that he had no
contact with the police except for that one meeting, and that no police coerced, entreated
or otherwise requested him to involuntarily admit Schoolcraft. He specifically sets forth
that there was no conspiracy.
Additionally, the testimony from the City defendants, set forth in detail in the
declaration of Brian E. Lee, and contained in Exhibit E, show no facts from which a
conspiracy can be established.
Furthermore, to state a claim in conspiracy against both state actors and private
individuals, the complaint must allege that the private actors they are "jointly engaged with
state officials" in a conspiracy to deprive the plaintiff of his constitutional rights, Adickes v.

16

S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). There is no such
allegation here. See also Bhatia v. Yale School of Medicine, 347 Fed.Appx. 663 (2d Cir. 2009).
Furthermore, as here, dismissal of “conclusory, vague, or general allegations of
conspiracy to deprive a person of constitutional rights” is appropriate. Sommer v. Dixon,
709 F.2d 173, 175 (2d Cir.1983). Here any reading of the complaint that would include Dr.
Isakov as a defendant in a conspiracy reveals nothing other than conclusory, vague or
general allegations, and thus the claim should be dismissed.
The motion for summary judgment should be granted by this Honorable Court.
POINT II
THE STATE CLAIM FOR INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS SHOULD BE DISMISSED
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,
17

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 sufficiently
outrageous to warrant the imposition of liability." Medcalf at 488 (citing Howell).
In this case, the affidavit of Dr. Isakov clearly sets forth that he engaged in a
systematic and logical evaluation of the condition of plaintiff, and certainly not the extreme
and outrageous conduct warranting the relief sought.
The fifth state claim should be dismissed.
POINT III
IF THE FEDERAL CLAIMS ARE DISMISSED,
THE PENDENT STATE CLAIMS SHOULD
ALSO BE DISMISSED
Since the 42 U.S.C. § 1983 and other Federal claims must necessarily fail for the
reasons set forth above, the pendent state claims should be dismissed for lack of
supplemental jurisdiction. See, Doe, supra., at 996 F. Supp. at 358, 28 U.S.C. § 1367.
Subdivisions (a) and (c) of §1367 read as follows:
(a) Except as provided in subsections (b) and (c) or as expressly
provided otherwise by Federal statute, in any civil action of
which the district courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other
claims that are so related to claims in the action within such
original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.
Such supplemental jurisdiction shall include claims that
18

involve the joinder or intervention of additional parties.
*****
(c) The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if—
(1) the claim raises a novel or complex issue of
State law,
(2) the claim substantially predominates over the
claim or claims over which the district court has
original jurisdiction,
(3) the district court has dismissed all claims over
which it has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
In this action, if the Court dismisses the federal claims against Dr. Isakov, it is submitted
that all of the pendent state claims, those mentioned above, and any others that plaintiff
may claim are applicable to Dr. Isakov, should be dismissed. See, Tops Markets, Inc. v.
Quality Markets, Inc., 142 F.3d 90, 102-03 (2d. Cir. 1998); see also, Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988).
“A district court may decline to exercise supplemental jurisdiction over a claim if
it ‘has dismissed all claims over which it has original jurisdiction.’ ” Hanig v. Yorktown Cent.
Sch. Dist., 384 F.Supp.2d 710, 725 (S.D.N.Y.2005); see also, Kolari v. New York Presbyterian
Hospital, 455 F.3d 118 (2d Cir.2006) (affirming district court's decision to decline the exercise
of supplemental jurisdiction where plaintiff's federal law claims were eliminated on a
motion to dismiss).

19

The pendent state claims should be dismissed.
POINT IV
PLAINTIFF'S CLAIM FOR DECLARATORY JUDGMENT
AGAINST DR. ISAKOV 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 HIM
It is undisputed that plaintiff did not include a claim for declaratory judgment as a
form of relief in his Second Amended Complaint. (Declaration of Brian E. Lee, 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. Isakov (Declaration of Brian E. Lee, Exhibit G). As Judge Sweet wrote in his
Opinion and Order (Exhibit G at 13):
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 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.
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 that certain conduct was
illegal and for an injunction against the City and Jamaica Hospital. (Exhibit G at 13).
Plaintiff's attempt to seek declaratory relief against Dr. Isakov was not granted by the
Court, if indeed he actually even sought such relief, and therefore must be dismissed. To
the extent plaintiff claims he moved for declaratory relief against Dr. Isakov, and Judge
20

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
The motion of the defendant Isak Isakov, M.D. for summary judgment dismissing
the federal claims should be granted in all respects, summary judgment should further be
granted as to Dr. Isakov dismissing the state claim for intentional infliction of emotional
distress, and the remaining state claims dismissed pursuant to 28 U.S.C. § 1367.
Dated:

Lake Success, New York
January 30, 2015
Respectfully submitted,
/s/ Brian E. Lee
_________________________
BRIAN E. LEE (BL9495)
Ivone Devine & Jensen, LLP
Attorneys for defendant Isak Isakov, M.D.
2001 Marcus Avenue
Lake Success, New York 11042
[phone]

21