Schoolcraft v. The City Of New York et al

Filing 378

MEMORANDUM OF LAW in Opposition re: 305 MOTION for Summary Judgment . . Document filed by Jamaica Hospital Medical Center. (Osterman, Brian)

GJR/DA
82-82153

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
■X

ADRIAN SCHOOLCRAFT,
Plaintiff,
-against10 CIV 6005 (RWS)
THE CITY OF NEW YORK, DEPUTY CHIEF MICHAEL
MARINO, Tax Id. 873220, Individually and in his Official
Capacity, ASSISTANT CHIEF PATROL BOROUGH
BROOKLYN NORTH GERALD NELSON, Tax Id. 912370,
Individually and in his Official Capacity, DEPUTY
INSPECTOR STEVEN MAURIELLO, Tax Id. 895117,
Individually and in his Official Capacity CAPTAIN
THEODORE LAUTERBORN, Tax Id. 897840, Individually
and in his Official Capacity, LIEUTENANT JOSEPH GOFF,
Tax Id. 894025, Individually and in his Official Capacity, SGT.
FREDERICK SAWYER, Shield No. 2576, Individually and in
his Official Capacity, SERGEANT KURT DUNCAN, Shield
No. 2483, Individually and in his Official Capacity,
LIEUTENANT CHRISTOPHER BROSCHART, Tax Id.
915354, Individually and in his Official Capacity,
LIEUTENANT TIMOTHY CAUGHEY, Tax Id. 885374,
Individually and in his Official Capacity, SERGEANT
SHANTEL JAMES, Shield No. 3004, AND P.O.’s "JOHN
DOE" #1-50, Individually and in their Offieial Capacity (the
name John Doe being fietitious, as the true names are presently
unknown) (colleetively referred to as "NYPD defendants"),
JAMAICA HOSPITAL MEDICAL CENTER, DR. ISAK
ISAKOV, Individually and in his Official Capacity, DR.
LILIAN ALDANA-BERNIER, Individually and in her Offieial
Capacity and JAMAICA HOSPITAL MEDICAL CENTER
EMPLOYEE'S "JOHN DOE" # 1-50, Individually and in their
Offieial Capaeity (the name John Doe being fictitious, as the
true names are presently unknown).
Defendants.
X
MEMORANDUM OF LAW
IN OPPOSITION TO PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT

Of Counsel:

2450493_1

Gregory J. Radomisli (GJR 2670)

TABLE OF CONTENTS
TABLE OF AUTHORITIES

11

PRELIMINARY STATEMENT

1

POINT I
PLAINTIFF IS NOT ENTITLED TO SUMMARY JUDGMENT
AGAINST JAMAICA HOSPITAL MEDICAL CENTER
ON HIS §1983 CLAIM
A.

Jamaica Hospital Medical Center cannot be subject
to direct liability under 42 USC §1983
1.
2.

B.

Jamaica Hospital Medical Center is not a “person.
Lack of State Action

99

1
2

Plaintiff is Not Entitled to Summary Judgment
Based Upon A Theory of Vicarious Liability
1.

Vicarious Liability.........
a.
An Official Policy

7
7

b.

The direction of a policymaker

9

c.

A widespread custom

9

POINT II
PLAINTIFF CANNOT OBTAIN SUMMARY JUDGMENT
BASED UPON NEGLIGENCE PERSE................................

12

CONCLUSION

13

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1

TABLE OF AUTHORITIES
Cases
Addington v. Texas,
441 U.S. 418, 425, 99 S.Ct 1804 (1979)
Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S.40, 119 S.Ct. 977 (1999)
Amnesty Amer. v. Town of West Hartford,
361 F.3dll3 (2d Cir. 2004)..................
Amofa V. Bronx-Lebanon Hosp. Center,
2006 U.S.Dist. LEXIS 83199 (S.D.N.Y. Nov. 13, 2006)

2

2,3

11

3

Antwi V. Montefiore Medical Center,
2014 U.S.Dist. LEXIS 161904 (S.D.N.Y. November 18, 2014)

2,3

Barry v. New York City Police Dept.,
2004 U.S. Dist. LEXIS 5951 (S.D.N.Y. April 7, 2004).............

11

Board of the County of Comm ’rs ofBryan County v. Brown,
520 U.S. 397 (1997)..................................................................

11

Boykin v. 1 Prospect Park
ALF, LLC, 993 F.Supp.2d 264 (E.D.N.Y. 2014).......................

12

DeMarco v. Sadiker,
952 F.Supp. 134 (E.D.N.Y. 1996)..............................................

5

Dilworth v. Goldberg,
914 F.Supp.2d 433 (S.D.N.Y. 2012)

7

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

3

Doe V. Rosenberg, 996 F.Supp.
343 (S.D.N.Y. 1998), ajf’d 166 F.3d 508 (2d Cir. 1999)

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3,4,5

Eng V. Bellevue Hospital,
2014 U.S.Dist. LEXIS 160887 (S.D.N.Y. July 8, 2014)

1

Fabrikant v. French,
691F.3dl93 (2d Cir. 2012)

2

Grayv. Group Home,
2013 U.S.Dist. LEXIS 147548 (E.D.N.Y. October 10, 2013)

4

Green v. City ofNew York,
465 F.3d65 (2d Cir. 2006)............

10

Hogan V. A. O. Fox Memorial Hosp.,
346 Fed. App’x 627 (2d Cir. 20D9)

2

Jackson v. Metropolitan Edison Co.,
419 U.S. 345 (1974).....................

5

Jeffes V. Barnes,
208 F.3d 49 (2d Cir. 2000)

8, 9,11

Jeffes V. Barnes,
20 F.Supp.2d 204 (N.D.N.Y. 1998)

11

Kia P. V. McIntyre,
235 F.3d 749 (2d Cir. 2000)

4

Mauro v. Costco Wholesale Corp.,
2013 WL 3816731 (E.D.N.Y. July 22, 2013)

12

McGugan v. Aldana-Bernier,
752F.3d224(2d Cir. 2014).................................................

3

Michaels v. City of New York,
2011 U.S.Dist. LEXIS 15806 (S.D.N.Y. February 16, 2011)

7

Monell V. Dep ’t of Soc. Servs. of the City of New York,
436 U.S. ^8 (1978)........................ ....................................

7,11,12

Morris v. NYC HRA,
2013 U.S. Dist. LEXIS 86623 (E.D.N.Y. June 19, 2013)

3

Project Release v. Prevost,
722F.2d960 (2d Cir. 1983).....................

5

Rendell-Baker v. Kohn,
457 U.S. 830, 838, 102 S.Ct. 2764 (1982)

2

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111

Reynolds v. Darrah,
2011 U.S.Dist. LEXIS 113621 (S.D.N.Y. September 30, 2011)

1

Rodri
iguez V. City ofNew York,
72 F.3dl051 (1995)..................................................................

5

Roev. City ofWaterbury,
I

542 F
F.3d31 (2d Cir.2008).........................................................

4

Ruhlmann v. Smith,
323 F.Supp.2d 356 (N.D.N.Y. 2004).........................................

5

Schoolcraft v. City ofNew York,
2011 U.S.Dist. LraS 4
48996 (S.D.N.Y. May 5, 2011)

7,9

Smolian v. Port Authority of New York and New Jersey,
98 A.D.3d 1103 (2d Dept. 2012)................................

4

Sorlucco V. New York City Police Department,
971F.2d864(2dCir. 1992).......................................

10

Sykes v. James,
13F.3d515(2dCir. 1993)

2

Tewksbury v. Dowling,
169F.Supp.2dl03(E.D.N.Y. 2001)..................................

5,6

Turturro v. Continental Airlines,
334 F.Supp.2d 383 (S.D.N.Y. 2004)..................................

3

Vaselli v. United States,
No. 12 CV 06221, 10/3/14 (E.D.N.Y. 2014).....................

12

Warheit v. City ofNew York,
2006 U.S.Dist. LEXIS 58167 (S.D.N.Y. August 15, 2006)

11, 12

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IV

PRELIMINARY STATEMENT
This Memorandum of Law is respectfolly submitted on behalf of defendant JAMAICA
HOSPITAL MEDICAL CENTER in opposition to plaintiffs motion for summary judgment. At
the outset, it must be noted that plaintiffs motion is replete with erroneous citations that are
either inaccurate and/or cite to the incorrect material(s). In accordance with FRCP 56(c) and
Local Rule 56.1, the Court ought to disregard those citations that are erroneous.

POINT I
PLAINTIFF IS NOT ENTITLED TO SUMMARY JUDGMENT
AGAINST JAMAICA HOSPITAL MEDICAL CENTER
ON HIS §1983 CLAIM
A.

Jamaica Hospital Medical Center cannot be subject
to direct liability under 42 USC §1983
1.

Jamaica Hospital Medical Center is not a “person.

Section 1983 of Title 42 of the United States Code provides, in relevant part: “Every
person who, under color of any statute. . .subjects or causes to be subjected, any citizen of the
United States. . . to the deprivation of any rights. . . secured by the Constitution and laws, shall
be liable to the party injured.’

42 USC §1983. Thus, a §1983 action can only be maintained

against a “person” who has deprived another of his or her constitutional rights. See e.g. Reynolds
V. Darrah, 2011 U.S.Dist. LEXIS 113621 (S.D.N.Y. September 30, 2011). As the Court noted in
Reynolds, “Jails, courts, corporations and law firms are not ‘persons’ within the meaning of
§1983.

2011 U.S.Dist. LEXIS 113621 at *3. In Eng v. Bellevue Hospital, 2014 U.S.Dist.

LEXIS 160887 (S.D.N.Y. July 8, 2014), this Court dismissed plaintiffs claims against Bellevue
Hospital because it found that “a hospital is not a ‘person’ under 42 U.S.C. §1983.

2014

U.S.Dist. LEXIS 160887 at *12. Because Jamaica Hospital cannot be subject to liability under

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1

42 use §1983, this Court cannot award summary judgment to the plaintiff on that claim.
2.

Lack of State Action

To state a elaim under §1983, a plaintiff must allege that: 1) a right seeured to him hy the
Constitution or federal law was violated; and 2) the alleged violation was committed hy a person
acting under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.40, 49-50, 119 S.Ct.
977 (1999). Seetion 1983 does not create any rights, but merely provides “a procedure for
redress for deprivation of rights [already] established.” Sykes v. James, 13 F.3d 515, 519 (2d Cir.
1993) (citation omitted).

There is no question that involuntary confinement constitutes a

significant deprivation of liberty, requiring due proeess protection. See e.g. Addington v. Texas,
441 U.S. 418, 425, 99 S.Ct. 1804 (1979).
Private conduct, however, “no matter how discriminatory or wrongful,” is not controlled
by §1983, see Am Mfrs., supra, 526 U.S. at 50, exeept in limited situations where a “private
entity’s challenged aetions are ‘fairly attributable’ to the state.

Fabrikant v. French, 691 F.3d

193, 207 (2d Cir. 2012) {quoting Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764
[1982]). The conduct of private actors can be attributed to the state for Seetion 1983 purposes
only if “1) the State compelled the eonduct, 2) there is a sufficiently close nexus between the
State and the private conduct, or 3) the private conduct consisted of aetivity that has traditionally
been the exclusive prerogative of the State.” Hogan v. A.O. Fox Memorial Hasp., 346 Fed.
App’x 627, 629 (2d Cir. 2009).
In this case, plaintiffs §1983 claims against Jamaica Hospital are based upon plaintiffs
contention that JHMC had an official policy that did not conform to the requirements of the
Mental Hygiene Law (“MHL”) and that as a result, the plaintiff was involuntarily hospitalized in
violation of his due process rights. JHMC, in fact, did not have an official policy that did not

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conform with the Mental Hygiene Law. The JHMC policy and MHL §9.39 are, in fact, identical.
This Court, however, need not reach a determination as to whether Jamaiea Hospital did, in fact,
have sueh a poliey because, as in Antwi v. Montefiore Medical Center, 2014 U.S.Dist. LEXIS
161904 (S.D.N.Y. November 18, 2014), “[t]he pivotal issue in this ease is whether Defendants
were state actors when they hospitalized . .. Plaintiff against [his] will. Id. at *16.
This Court, by Judge Robert W. Sweet, issued the seminal decision finding that private
hospitals and physicians do not act under color of law when a patient is involuntarily
hospitalized. See Doe v. Rosenberg, 996 F.Supp. 343 (S.D.N.Y. 1998), aff’d 166 F.3d 508 (2d
Cir. 1999). The Second Circuit recently reaffirmed this position in McGugan v. Aldana-Bernier,
752 F.3d 224 (2d Cir. 2014); see also Antwi v. Montefiore Medical Center, supra, 2014 U.S.Dist.
LEXIS 161904, *16 (S.D.N.Y. November 18, 2014) (“[I]t is well-settled in the Second Circuit
that a private hospital confining a patient under the New York MHL is not acting under color of
state law”). As the Antwi Court noted, “[I]n numerous §1983 eases involving private hospitals
and health care professionals. Southern District courts have found that none of the three tests for
state action-

state compulsion,’ ‘public function,’ and ‘close nexus’ ■are satisfied.” 2014

U.S.Dist. LEXIS 161904 at *17-18; see also Amofa v. Bronx-Lebanon Hosp. Center, 2006
U.S.Dist. LEXIS 83199 at *4 (S.D.N.Y. Nov. 13, 2006); Turturro v. Continental Airlines, 334
F.Supp.2d 383, 395-397 (S.D.N.Y. 2004); Doe v. Harrison, 254 F.Supp.2d 338, 342-345
(S.D.N.Y. 2003).
Although JHMC did not have a poliey that was not in conformity with the Mental
Hygiene Law, its poliey was the policy of a private hospital. That is not sufficient to eonstitute
state action because private conduct, “no matter how diseriminatory or wrongful,” is not
controlled by §1983. Am Mfrs., supra, 526 U.S. at 50; see also Morris v. NYC HRA, 2013 U.S.

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3

Dist. LEXIS 86623, *9-10 (E.D.N.Y. Time 19, 2013) (“Village Care and Jamaica Hospital are
both private entities that are not normally amenable to suits for damages pursuant to 42 U.S.C.
§1983. As the Supreme Court has held, ‘the under-color-of-state-law element of §1983 excludes
from its reach merely private conduct, no matter how discriminatory or wrongful’”); Kia P. v.
McIntyre, 235 F.3d 749, 755-56 (2d Cir. 2000) (private hospital was not a state or municipal
facility and therefore was not liable pursuant to §1983 unless it was acting as an instrumentality
of the state); Smolian v. Port Authority ofNew York and New Jersey, 98 A.D.3d 1103 (2d Dept.
2012) (dismissing §1983 claim against Jamaica Hospital because it was not a state actor).
Plaintiffs allegation that JHMC had an “official policy” that did not conform to the
requirements of the Mental Hygiene Law does not excuse him from having to initially establish
that Jamaica Hospital is a state actor. For example, in Gray v. Group Home, 2013 U.S.Dist.
LEXIS 147548 (E.D.N.Y. October 10, 2013), the Court noted that to prevail on a Section 1983
claim “against a municipality or private entity acting under color of state law, a plaintiff must
show: 1) actions taken under color of law; 2) deprivation of a constitutional or statutory right;
3) causation; 4) damages; and 5) that an official policy of the municipality [or private entity
acting under color of state law] caused the constitutional injury.

2013 U.S.Dist. LEXIS

147548 at *10 (emphasis added) (citing Roe v. City of Waterhury, 542 F.3d 31, 36 [2d Cir.
2008]).
In addition, as this Court recognized in Doe, “[c]ompliance 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. If compliance with the statute does not

constitute state action, it is illogical to conclude that not complying with the statute, as plaintiff
alleges, is somehow transformed into state action.

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4

Similarly, this Court also noted in Doe that “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.

996 F.Supp. at 352 {citing Jackson v. Metropolitan Edison Co., 419 U.S. 345 [1974]).

Consequently, the alleged failure to abide by a state regulation cannot constitute state action.
Plaintiffs counsel has not made any effort to establish that any of the defendants engaged
in state action and, as such, cannot sustain a cause of action pursuant to 42 USC §1983, let alone
be entitled to summary judgment on that claim. His motion papers do not address any of the
tests that would allow the conduct of private actors to be attributed to the state for §1983
purposes. In the absence of state action, there can be no due process violation. Therefore,
plaintiffs motion should be denied.
The cases plaintiffs counsel cites in his 12/23/14 Memorandum of Law do not support his
position. Ruhlmann v. Smith, 323 F.Supp.2d 356 (N.D.N.Y. 2004) and DeMarco v. Sadiker, 952
F.Supp. 134 (E.D.N.Y. 1996) involved state-run hospitals, not a private hospital. Similarly,
Rodriguez v. City of New York, 72 F.3d 1051 (1995) involved a city hospital, not a private
hospital. Project Release v. Prevost, 722 F.2d 960 (2d Cir. 1983) simply held that the standards
for involuntary hospitalization embodied in the Mental Hygiene Law meet constitutional
standards. Accordingly, none of the cases plaintiff cites supports his position that he is entitled
to summary judgment because he has still not established state action.
Plaintiffs citation to Tewksbury v. Dowling, 169 F.Supp.2d 103 (E.D.N.Y. 2001) in
support of his claim that JHMC was involved in state action in this case is also unavailing. In
that case, the defendants, citing Doe v. Rosenberg, supra, argued that the private physicians who
hospitalized the plaintiff were not state actors because their decision was based upon their own

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5

medical judgment. The Court stated that “if the decision to commit Tewksbury was based purely
on their own independent medical judgment, defendants would be correct that they are not state
actors.

169 F.Supp.2d at 109. The court noted, however, that the physicians acknowledged that

they had accepted the plaintiff as a patient over the telephone, that an independent examination
was not performed, and therefore the initial decision to hospitalize the plaintiff was not a result
of their independent medical judgment. Id. In contrast, plaintiffs Third Amended Complaint
herein indicates that the plaintiff was seen at JHMC and admitted after an examination was
performed (Exhibit “A” attached to the 2/11/15 Declaration of Gregory J. Radomisli,

198,

199)\
As stated above, in Tewksbury, one of the defendants, who was “indisputably” a state
actor, concluded that the plaintiff required hospitalization, and telephoned the private defendantphysician, who admitted the plaintiff to the private hospital “without any further examination.”
Id. at 110. The Court found that because there was consultation among the New York State
health professionals and the private psychiatrists, there was state action. Moreover, as the Court
noted, the plaintiff could not have been hospitalized without the certification of the state-actor
physician, pursuant to the terms of §9.37 of the Mental Hygiene Law, which required that the
Director of Community Services certify a patient for immediate hospitalization. Id. Thus, in
Tewskbury, the decision to hospitalize the plaintiff at the private hospital was, in fact, a “joint”
decision between state physicians and private physicians, and one, according to MHL §9.37, that
could only have been made with the assistance of a state actor. In contrast, the decision to admit
the plaintiff to JHMC was not made in conjunction with any state psyehiatrists, was made by
private psychiatrists who utilized their own independent medical judgment, and was made
All references to Exhibits refer to the Exhibits attached to the 2/11/15 Declaration of Gregory J.
Radomisli.

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6

pursuant to MHL §9.39, which does not require any input from a state physieian.
B.

Plaintiff is Not Entitled to Summary Judgment
Based Upon A Theory of Vicarious Liability

1.

Vicarious Liability

Presumably, plaintiff is trying to hold Jamaiea Hospital liable under Monell v. Dep’t of
Soc. Servs. of the City of New York, 436 U.S. 658 (1978), as applied to private parties. In the
context of private actors, private employers are not vicariously liable under §1983 for the
constitutional torts of their employees “absent allegations of conduct pursuant to an official
policy.” Dilworth v. Goldberg, 914 F.Supp.2d 433, 452 (S.D.N.Y. 2012).^ As this Court has
recognized, the Supreme Court has identified at least two situations that eonstitute an official
policy: “(1) where there is an officially promulgated policy as that term is generally understood.
. . and (2) where a single act is taken by a munieipal employee who, as a matter of State law, has
final policymaking authority in the area in which the action was taken.” Schoolcraft v. City of
New York, 2011 U.S.Dist. LEXIS 48996, *12 (S.D.N.Y. May 5, 2011) (citations omitted).

a.

An Official Policy

In his motion, plaintiffs counsel admits that the “official policy” of Jamaica Hospital
conforms to the Mental Hygiene Law (p. 47, plaintiffs counsel’s 12/23/14 Memorandum of
Law). In addition, there is no dispute that Dr. Lilian Aldana-Bemier and Dr. Isak Isakov were
^ Defendant JHMC adopts and incorporates by reference the arguments advanced by co-defendants Dr.
Isak Isakov and Dr. Aldana-Bernier in their Memoranda of Law in support of their summary judgment
motions to the extent they argue that neither physician was a state actor and therefore could not have
deprived the plaintiff of due process. Consequently, JHMC cannot be held vicariously liable for their
alleged civil rights violations. See Michaels v. City ofNew York, 2011 U.S.Dist. LEXIS 15806 (S.D.N.Y.
February 16, 2011) (Absent a constitutional violation, no Monell liability can attach, even if plaintiff can
demonstrate the existence of a municipal policy or practice).

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7

the psychiatrists who admitted and treated the plaintiff, and there is nothing to suggest that they
had any authority to make policy; in this case, they only made individual treatment decisions.
Although they may have had discretion in terms of whether to admit and retain the plaintiff,
discretionary authority is not the same as final policymaking authority. See e.g., Jeffes v. Barnes,
208 F.3d 49, 57 (2d Cir. 2000). Therefore, the isolated decisions of Dr. Aldana-Bemier and Dr.
Isakov to admit and retain the plaintiff, respectively, were individual patient decisions, and do
not constitute acts by persons who have final policymaking authority.
Contrary to plaintiffs counsel’s claims. Dr. Dhar’s testimony does not demonstrate that it
was Jamaica Hospital policy to admit a patient if the patient presented 'any” risk of
dangerousness as opposed to a “substantial” risk. In fact, as discussed herein, the official JHMC
policy is identical to the language of MHL §9.39. Rather, as Dr. Dhar explained, whether the
risk of physical harm is considered “substantial” is not really defined in the policy, although the
policy clearly states that the risk of harm must be substantial. “It’s clinical judgment and based
on that clinical judgment, you make a determination” (Exhibit “B”, p. 128). Similarly, when
asked whether there was “any difference between a potential or any potential risk of
dangerousness and a substantial risk of dangerousness” under the Jamaica Hospital policy, he
answered, “Again, it’s a clinical judgment. I don’t think it’s defined in the policy” (Exhibit “B”,
p. 133). Thus, whether any risk is deemed substantial is up to the individual clinician—^it is not a
policy issue. An out-of-context citation to a single question and answer should not be the basis
upon which to grant plaintiffs motion for summary judgment, given that Dr. Dhar makes clear
in his deposition testimony that whether a patient presents with a substantial risk of harm to
himself or others pursuant to MHL §9.39 is a matter of clinical judgment on the part of the
physician who evaluates the patient.

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8

Significantly, in his Reply Memorandum of Law in Further Support of Plaintiff s Motion
to Amend the Complaint (Document #318), plaintiffs counsel, addressing the clinical judgment
issue, admits that at the very least, “Jamaica Hospital should be required to make that argument
to a jury” (p. 8). Clearly, he recognizes that Dr. Dhar’s clarification of his testimony creates a
question of fact. This is a tacit admission that plaintiff is not entitled to summary judgment.

b.

The direction of a policymaker

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

c.

A widespread custom

As this Court recognized in its decision, a “custom” need not receive formal approval by
the appropriate decision maker. Schoolcraft, supra, 2011 U.S.Dist. LEXIS at *12. Rather, an
act performed pursuant to a “custom” that has not been “formally approved by an appropriate
decision maker” may subject an employer to liability “on the theory that the relevant practice is
so widespread as to have the force of law” Id. at *12-13 (citation omitted). To prevail on that
theory, the plaintiff must prove that “the custom at issue is well settled” and that it is so

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9

permanent and well settled as to constitute a custom or usage with the force of law: Id. at *13
(citations omitted).

The unconstitutional practice must be “so manifest as to imply the

constructive acquiescence of senior policy-making officials.” Sorlucco v. New York City Police
Department, 971 F.2d 864, 871 (2d Cir. 1992).
Plaintiffs counsel has not alleged and caimot establish a widespread custom of depriving
patients of their civil rights. In Green v. City ofNew York, 465 F.3d 65 (2d Cir. 2006), the Court
held that the plaintiff did not have sufficient evidence of a widespread custom to establish
municipal liability because plaintiff could only point to one instance in which emergency
personnel were not familiar with the correct protocol, and could not point to any other instances
in which City personnel had engaged in actions similar to those in which the defendants had
engaged,

Green, 465 F.3d at 81.

Although plaintiffs counsel refers to Dr. Isakov’s and Dr. Aldana-Bernier’s
understanding of the Mental Hygiene Law, neither testified about the general practice at Jamaica
Hospital or their understanding of how countless other psychiatrists who practice at Jamaica
Hospital apply the Mental Hygiene Law in deciding whether to involuntarily admit a patient. In
fact, while plaintiffs counsel may question whether Dr. Aldana-Bemier appropriately followed
Jamaica Hospital policy, there was no doubt that she was aware that the policy was to admit a
patient only if he presented a “substantial danger” to himself or others; she testified as follows
(Exhibit “C”, pp. 239-241):
Q:
A:
Q:

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Do you endeavor to follow the written policies of Jamaica Hospital, the written
ones?
The written, yes.
In dealing with Mr. Schoolcraft, did you endeavor to follow the policy set forth
here as Exhibit 70 [referring to JHMC’s policy on emergency admissions,
attached as Exhibit 6 to plaintiffs motion]?

10

* [Colloquy]
Is your answer, yes, you tried toThat’s what Fm saying, yes.

Q:
A:

Furthermore, when a plaintiffs constitutional rights have been violated by an employee’s
single tortious decision or course of action, “the inquiry focuses on whether the actions of the
employee in question may be said to represent the conscious choices of the municipality itself
Amnesty Amer. v. Town of West Hartford, 361 F.3d 113, 125-126 (2d Cir. 2004). A municipality
or other employer will not be liable imless its policies were the “moving force” behind the
alleged constitutional violation. Barry v. New York City Police Dept., 2004 U.S. Dist. LEXIS
5951 (S.D.N.Y. April 7, 2004) {citing Board of the County of Comm’rs of Bryan County

V.

Brown, 520 U.S. 397 (1997)). There must be a causal link between the custom or policy and the
alleged wrongdoing. Id. Courts must apply “rigorous standards of culpability and causation. . .
to ensure that the indirect-causation theory not result in the municipality’s being ‘held liable
solely for the actions of its employee. 59? Id. at 32 {citing Jeffes v. Barnes, 20 F.Supp.2d 204
[N.D.N.Y. 1998]).
The decision in Warheit v. City of New York, 2006 U.S.Dist. LEXIS 58167 (S.D.N.Y.
August 15, 2006) is directly on point in this regard. In that case, the police brought the plaintiff
to Bellevue Hospital, where he was involuntarily hospitalized. Plaintiff brought a cause of action
for violation of his civil rights. The Court granted the defendant’s motion for summary judgment
and dismissed plaintiffs claim against the defendant hospital. The court noted that in order to
sustain a Monell claim alleging violation of §1983 against the hospital, the plaintiff would have
to establish a policy or custom
to involuntarily commit patients to the hospital in violation of their
substantive and procedural due process rights. This would require proof of a
written directive or regulation by [defendant], an act by an [sic} policymaking

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employee at [defendant hospital], or a practiee so widespread that it has the
force of law at [the defendant hospital]. [Plaintiff] establishes none of these.
All [plaintiff] pleads is that a number of physicians at [defendant hospital],
none of whom worked in a policymaking capacity, committed him to
[defendant hospital] on an emergency basis pursuant to New York’s Mental
Hygiene Law. ... A single incident by persons without policymaldng authority
carmot create liability under Monell. Were the Court to hold differently, it
would in essence be holding [defendant hospital] liable in respondeat superior
for the conduct of its employees. This is exactly what Monell forbids.
Warheit at *27-38. Here, as in Warheit, plaintiffs counsel has failed to meet his burden of
proof

POINT II
PLAINTIFF CANNOT OBTAIN SUMMARY JUDGMENT
BASED UPON NEGLIGENCE PER SE
Under New York law, “[w]hen a defendant violates a statute that defines the degree of
care to be used under certain circumstances, the violation constitutes negligence per se if 1) it
causes the injury, 2) the plaintiff is a member of the class intended to be benefited by the
statute, and 3) the statute is intended to protect against the very hazard that causes the plaintiffs
injury.

Vaselli v. United States, No. 12 CV 06221, 10/3/14 (E.D.N.Y. 2014), quoting Mauro v.

Costco Wholesale Corp., 2013 WL 3816731, *4 (E.D.N.Y. July 22, 2013) (emphasis added); see
also Boykin v. 1 Prospect Park ALF, LLC, 993 F.Supp.2d 264 (E.D.N.Y. 2014) (noting that
evidence of negligence is not sufficient; plaintiff must also demonstrate harm causally linked to
the alleged per se negligence).
In this case, there is no dispute that the co-defendant private attending physician Dr.
Aldana-Bernier admitted the plaintiff to Jamaica Hospital, and that Dr. Isakov subsequently took
over his care. Regardless of what Dr. Dhar testified to regarding his understanding of the Mental
Hygiene Law, he never treated the plaintiff. Dr. Aldana-Bemier and Dr. Isakov are the only
physicians plaintiff can accuse of both having allegedly violated Section 9.39 of the Mental
Hygiene Law and also causing harm to the plaintiff. JHMC itself could not have violated the

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statute and could not have caused harm to the plaintiff when plaintiffs allegations are based
upon actions taken by Dr. Aldana-Bemier and Dr. Isakov. Accordingly, plaintiff cannot obtain
summary judgment against Jamaica Hospital based on a claim of negligence per se.

CONCLUSION
For the foregoing reasons, it is respectfully requested that this Court deny plaintiffs
motion for summary judgment in its entirety, together with such other and further relief as this
Court deems just and proper.
Dated: New York, New York
February 11, 2015
Respectfully submitted,
Martin Clearwater & Bell LLP
.■;7

By:_i

/y

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

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