Liu v. New York State Department of Health et al

Filing 99

OPINION & ORDER re: 41 MOTION to Dismiss filed by FedEx, 44 MOTION to Dismiss filed by City of New York, 49 FIRST MOTION to Dismiss for Lack of Jurisdiction filed by Ryan NENA Community Health Ce nter, 35 MOTION to Dismiss filed by New York City Health and Hospitals Corporation. For the reasons set forth above, Defendants motions are GRANTED in part and DENIED in part, as summarized below: The City� 39;s motion to dismiss Plaintiff's claims against the City is GRANTED. NYCHH's motion to dismiss Plaintiff's claims against NYCHH is GRANTED. Ryan NENA's motion to dismiss is GRANTED. FedEx's motion to dismiss is GRA NTED. Plaintiff's claims against Bertran Bouillon, Harley Charlene, Tsering Phunstock, Kim Behrens, Yin Lam, Analyn Velasco, Igama Zenaida, Chih Hsu, Trista Chiu, Yu-Ying Chen, Williams, Sona Daridson, Becky Lou, Khin Win, Mey Leon Che n, and Annmarie Britten-Franklin are DISMISSED. What remains of the Amended Complaint are Plaintiff's claims against Officer Decargna for false arrest and false imprisonment, and Doctors Lyons, Hawkins, Penestti, Howard, Udarbe, and Song for involuntary confinement. The Clerk of Court is respectfully directed to mail a copy of this Order to Plaintiff and terminate the motions, Docs. 35, 41, 44, 49. Bellevue Hospital Center, Bertram Bouillon, Annemarie Britten-Franklin (NYS WCD B), Harley Charlene, Mey Leon Chen, Yu-Ying Chen, Trista Chiu, City of New York, Sona Daridson (Medicaid Office), Kathleen Ericsen, FedEx, HHC, Chih Hsu, Jane Doc Nurse (Ryan NENA Community Health Center), Jane Doe Police Officers ##1-2, Jane Doe S taff (Ryan NENA Community Health Center), John Doc Nurse (Ryan NENA Community Health Center), John Doe EMT #1 and #2 (New York Presbyterian EMS), John Doe Hospital Staff ##1-3 (Bellevue Hospital Dental), John Doe Police Officers ##3-6, Yin Lam, B ecky Lou, New York City Health and Hospitals Corporation, New York Police Department 5th Precinct, New York State Department of Health, Tsering Phunstock, Ryan NENA Community Health Center, USPS, Analyn Velasco, Mr. Williams, Khin Win, Igama Zenaida, Ms. Banie (A Staff of New York State Dept. of Health) and Kim Behrens terminated. (Signed by Judge Edgardo Ramos on 8/4/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
XIAO QING LIU,
Plaintiff,
OPINION & ORDER
– against –
16 Civ. 4046 (ER)
NEW YORK STATE DEPARTMENT OF
HEALTH, NEW YORK POLICE DEPARTMENT
5TH PRECINCT, BELLEVUE HOSPITAL
CENTER, RYAN NENA COMMUNITY
HEALTH CENTER, USPS, and FEDEX,
Defendants.

Ramos, D.J.:
Plaintiff Xiao Liu brings this pro se action pursuant to 42 U.S.C. § 1983 against the City
of New York (the “City”), Ryan NENA Community Health Center (“Ryan NENA”), Federal
Express Corporation (“FedEx”), New York City Health and Hospitals Corporation (“NYCHH”)
and a number of their respective employees. 1 Plaintiff asserts claims for, among other things,
false arrest, false imprisonment, and involuntary confinement in violation of her First, Fourth,
Fifth, Sixth, and Fourteenth Amendment rights.
Before the Court are Defendants’ motions to dismiss pursuant to Rules 12(b)(1) and (6)
of the Federal Rules of Civil Procedure. For the reasons set forth below, Defendants’ motions
are GRANTED in part and DENIED in part.

1

The individual defendants added to the Amended Complaint include, Sergeant Bertran Bouillon and Officer
Matthew Decagna of the 5th Precinct; Doctors Camila Lyons, Abigail Hawkins, Sunil Penestti, Jonathan Howard,
John Udarbe, and Xiaoling Song, and Nurses Harley Charlene, Tsering Phunstock, Kim Behrens, Yin Lam, Analyn
Velasco, Igama Zenaida, Chih Hsu from Bellevue Hospital; and Trista Chiu, a social worker, Yu-Ying Chen, an
“LCAT,” Mr. Williams, an advocacy director, and Sona Daridson, from the Medicaid Office at Bellevue Hospital.
Plaintiff also names numerous individuals employed by Ryan NENA. None of these individuals have been served.

I. Background
Plaintiff is a sixty-five year old Chinese woman whose primary language is Mandarin.
Her capacity to speak and understand English is limited. Amended Complaint (Doc. 71) at 4.
Though the Amended Complaint is a not a model of clarity, the Court endeavors to construe
Plaintiff’s claims to raise the strongest arguments that they suggest. Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
Plaintiff alleges that on December 30, 2014, she appeared voluntarily to meet with
Sergeant Bertran Bouillon at the 5th Precinct of the New York City Police Department to discuss
a “verichip-locator” she claimed had been implanted in her body. Amended Complaint at 4.
Weeks later, on January 18, 2015, at approximately 10:00 am, she returned to the precinct to
report a burglary and seek further assistance with removing the tracking device in her body. In
response to her request, a lieutenant—who Plaintiff does not name or otherwise identify—
suggested that she go to a hospital. Id. She informed the lieutenant that she would go at a later
date because she did not have the proper foot attire or an umbrella, and had other chores to
accomplish. Id. Plaintiff claims that at no point during this interaction with the lieutenant did
she “verbally or physically threaten, intimidate, or frighten another person” or pose a danger to
herself. Id. Nevertheless, without telling her, the lieutenant called an ambulance at
approximately 10:40 am. Id.
Once the ambulance arrived, Plaintiff informed the emergency medical personnel
(“EMTs”) that a tracking device had been implanted in her body and that she did not want to go
to the hospital. Id. at 5. She claims that while speaking to the EMTs, officers, including Officer
Matthew Decagna, grabbed her bag and umbrella, handcuffed her, and dragged her into the

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ambulance. 2 Id at 5. Somehow, Plaintiff managed to free one hand from the handcuffs and was
once again restrained. Id. Although Plaintiff continued to tell the officers and EMTs that she did
not want to go to the hospital and ask that she be let go, her requests were ignored. Id.
The ambulance arrived at Bellevue Hospital at approximately 11:30 am. Id. Plaintiff
was immediately taken to the psychiatric unit where the handcuffs were removed and she was
told that she was not free to leave. Id. Plaintiff claims that she did not engage in any violent or
threatening behavior at the hospital and that she was “well-groomed, appeared physically
health[y] . . . and sane.” Id. Nevertheless, Dr. Camila Lyons did not perform an independent
assessment of her medical condition to confirm the EMTs’ account and instead forcibly
hospitalized her based on their statements. Id. Dr. Lyons’ decision was affirmed—again without
further assessment—by Doctors Abigail Hawkins, Sunil Penestti, Jonathan Howard, and John
Udarbe. Id. at 5, 7. Additionally, Plaintiff alleges that Trista Chu—the social worker assigned to
her case—made a number of false allegations in her report, including that Plaintiff swung at the
EMTs and that she endangered others. Id. at 8.
Plaintiff also alleges that she was prevented from speaking with her daughter, who had
been called by hospital staff, and told that she not could not leave the hospital until she took
“Risperidone”—a type of anti-psychosis medication. Id. at 6. Specifically, she claims that Dr.
Xiaoling Song ordered her to take medication and because she refused, the hospital staff put the
medication into her food. Plaintiff claims that the medication caused her to experience
headaches, dizziness, facial numbness, chest pain, bilateral paralysis and cramps. Id. at 7. She

2

Plaintiff claims that she received a letter from the City Law Department stating that because the criminal charges
against her had been dismissed, the records pertaining to her arrest had been sealed. She argues that she should be
granted access to those documents and that the officers lied about her behavior being “violent” or “endangering
others.” Amended Complaint at 5.

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further alleges that she attempted to file complaints against the hospital and its staff and also
requested multiple hearings to challenge her confinement. These attempts were allegedly
rebuffed and Plaintiff remained in the hospital until February 3, 2015, for a total of sixteen days,
when she was ordered to be released by a judge. The judge found that she was not an imminent
risk of danger to herself or others. Id. Upon release from the hospital, Plaintiff was not given
any prescriptions or instructed to take any medicine. Id. Plaintiff claims that at no point during
her stay at the hospital did she ever engage in any physically violent behavior against herself or
others. She also states that she does not have a history of violence and that the hospital’s own
records confirm this history.
In a separate set of allegations, Plaintiff alleges that later that year, in September, she
became an outpatient at Ryan NENA. Id. at 9. The doctor with whom she visited suggested that
various tests be run. Id. Plaintiff claims that she was injected with something that made her left
arm feel tender, numb, and weak and that several blood tests were completed. Id. She also
understood that they would be implanting another “locator” in her chest. Id. On December 27,
2015, Plaintiff returned to Ryan NENA and asked for her medical records. Id. She claims that
she was not provided with a complete set of her medical records and that information was
withheld from her. Plaintiff claims that she contacted the New York State Department of Health
Division of Certification and Surveillance (“NYSDH”) in order to complain about her treatment.
Id. at 10. The NYSDH responded to Plaintiff via letter, which she alleges was dismissive of her
complaint. Id.
Plaintiff sent letters to the NYSDH via the United States Postal Service (“USPS”) and
FedEx complaining about her treatment at Ryan NENA. She claims that although she sent the

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letters by overnight priority, the USPS and FedEx purposely delayed her mailings; and the letters
did not arrive on time. Id. at 11, 12.
II. Procedural History
On May 31, 2016, Plaintiff filed a Complaint against the NYSDH, the 5th Precinct of the
New York Police Department (“NYPD”), Bellevue Hospital Center, Ryan NENA, USPS and
FedEx. (Doc. 2). By order dated August 15, 2016, the Court sua sponte dismissed the NYSDH
and the USPS as defendants as entitled to immunity under the Eleventh Amendment and the
doctrine to sovereign immunity, respectively. The Court also directed the Clerk of Court to
amend the caption of the action to replace Bellevue Hospital Center and the NYPD with the
proper defendants: New York City Health and Hospitals Corporation (“NYCHH”) and the City
of New York, respectively. (Doc. 6).
On October 13, 2016, NYCHH filed a letter requesting a pre-motion conference to seek
leave to file a motion to dismiss. (Doc. 15). Shortly thereafter, the City of New York, FedEx,
and Ryan NENA also filed letters seeking to file motions to dismiss. The Court granted leave
and Defendants timely filed their motions. (Docs. 35, 41, 44, 49). On March 20, 2017, without
leave from the Court, Plaintiff filed an Amended Complaint adding allegations and over thirty
individual defendants. (Doc. 71). In response, Defendants filed a letter requesting a pre-motion
conference for leave to file a motion to strike the Amended Complaint. (Doc. 72). At the premotion conference, the Court denied Defendants’ request, and noting Plaintiff’s pro se status,
deemed the filing as a motion to amend. The Court granted Plaintiff’s motion, but allowed the

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parties to file supplemental briefing to address the additional allegations in the Amended
Complaint. 3
III. Legal Standard
A. Rule 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) requires that an action be dismissed for lack of
subject matter jurisdiction when the district court lacks the statutory or constitutional power to
adjudicate the case. Fed. R. Civ. P. 12(b)(1). The party asserting subject matter jurisdiction
carries the burden of establishing, by a preponderance of the evidence, that jurisdiction exists.
See Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008). On a Rule 12(b)(1)
motion challenging the district court’s subject matter jurisdiction, evidence outside of the
pleadings may be considered by the court to resolve the disputed jurisdictional fact issues. See
Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000); see
also Morrison, 547 F.3d at 170. When evaluating a motion to dismiss for lack of subject matter
jurisdiction, the court accepts all material factual allegations in the complaint as true but does not
necessarily draw inferences from the complaint favorable to the plaintiff. J.S. ex rel. N.S. v.
Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004) (citing Shipping Fin. Servs. Corp. v. Drakos,
140 F.3d 129, 131 (2d Cir. 1998)).
B. Rule 12(b)(6)
Under Rule 12(b)(6), a complaint may be dismissed for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When ruling on a motion to dismiss

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Defendants all filed supplemental memoranda. (Docs. 87–89, 92–95). To her opposition, Plaintiff attached a
document titled “A Leading List of Medical Record Bellevue Hospital Center Inpatient Chart” in which she
organized her approximately 300 page medical records and provided her comments on the medical staffs’
assessments. (Doc. 90). Plaintiff also attaches her medical records, which the Court previously received from
NYCHH. (Doc. 91).

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pursuant to Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true
and draw all reasonable inferences in the plaintiff’s favor. Koch v. Christie’s Int’l PLC, 699 F.3d
141, 145 (2d Cir. 2012). However, the Court is not required to credit “mere conclusory
statements” or “threadbare recitals of the elements of a cause of action.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also id.
at 681 (citing Twombly, 550 U.S. at 551). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Id. at
678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). If the plaintiff has not
“nudged [his] claims across the line from conceivable to plausible, [the] complaint must be
dismissed.” Twombly, 550 U.S. at 570.
The same standard applies to motions to dismiss pro se complaints. See Mancuso v.
Hynes, 379 F. App’x 60, 61 (2d Cir. 2010). However, the Court is also obligated to construe a
pro se complaint liberally and to interpret a pro se plaintiff’s claims as raising the strongest
arguments that they suggest. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011); Triestman, 470
F.3d at 474. The obligation to be lenient while reading a pro se plaintiff’s pleadings “applies
with particular force when the plaintiff’s civil rights are at issue.” Jackson v. N.Y.S. Dep’t of
Labor, 709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) (citing McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004)). “However, even pro se plaintiffs asserting civil rights claims cannot
withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise
a right to relief above the speculative level.” Id. (quoting Twombly, 550 U.S. at 555) (internal
quotation marks omitted). A complaint that “tenders naked assertions devoid of further factual
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enhancement” will not suffice. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557)
(internal quotation marks and brackets omitted); see also Triestman, 470 F.3d at 477 (“[P]ro se
status ‘does not exempt a party from compliance with relevant rules of procedural and
substantive law.’”) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)) (internal quotation
marks omitted).
C. Extrinsic Materials
“When presented with a motion to dismiss pursuant to Rule 12(b)(6), the court may
consider documents that are referenced in the complaint, documents that the plaintiffs relied on
in bringing suit and that are either in the plaintiffs’ possession or that the plaintiffs knew of when
bringing suit, or matters of which judicial notice may be taken.” Silsby v. Icahn, 17 F. Supp. 3d
348, 354 (S.D.N.Y. 2014) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.
2002)). Here, in addition to its supplemental briefing, NYCHH attaches Plaintiff’s medical
records, which it claims are referenced in and are an integral part of the Amended Complaint.
Memorandum in Further Support (“NYCHH Supp. Memo”) (Doc. 87), Ex. B (“Plaintiff’s
Medical Records”).
The Court finds that the medical records are incorporated by reference into the Amended
Complaint and thus they may be considered at this stage. It is abundantly clear that Plaintiff
relied heavily on the records in drafting the Amended Complaint. Unlike the Complaint, the
Amended Complaint specifically names over thirty individuals, including eighteen hospital
employees. Plaintiff also relies on the medical records to show that she did not engage in violent
behavior. In support of her claim, she explicitly quotes language from various documents in the
record. Accordingly, the Court will consider Plaintiff’s medical records in assessing Defendants’
motion to dismiss. See Simmons v. Pedroza, No. 10 Civ. 821 (PGG), 2011 WL 814551, at *3 n.2
8

(S.D.N.Y. Mar. 7, 2011) (“Because [plaintiff’s] medical records are incorporated by reference
into his Complaint, they are properly considered on Defendants’ motion to dismiss.”) (citing
Brass v. American Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993)).
IV. Discussion
Section 1983 grants a right of action to any “citizen of the United States or other person
within the jurisdiction thereof” who has been deprived of “any rights, privileges, or immunities
secured by the Constitution and laws” by a person acting under color of state law. 42 U.S.C. §
1983. To state a claim under Section 1983, a plaintiff must allege that: (1) a right secured by the
Constitution or federal law was violated by defendants, and (2) the alleged violation was
committed by a person acting under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526
U.S. 40, 49–50 (1999). Construing the Amended Complaint liberally, Plaintiff seems to allege
that she was falsely arrested and involuntarily confined in violation of her First, Fourth, Fifth,
Sixth, and Fourteenth Amendment rights. 4
A. The City’s Motion
Plaintiff asserts claims for false arrest and false imprisonment against the City, Sergeant
Bouillon, Officer Decagna, and several unnamed officers. Amended Complaint at 2–8.
1. Claims Against Individual City Employees
To establish a claim for false arrest and false imprisonment under both Section 1983 and
New York law, a plaintiff must prove: (1) that the defendants intentionally confined plaintiff; (2)

4
Plaintiff asserts that her First, Fifth, and Sixth Amendment rights were violated. However, even construing the
Amended Complaint liberally, Plaintiff has not alleged any facts from which the Court can discern an intelligible,
much less cognizable, claim based on a First Amendment violation. In addition, “[b]ecause the Fifth Amendment
applies only to the federal government, Plaintiff cannot state a claim for deprivation of due process in violation of
the Fifth Amendment where, as here, there are no allegations of federal action.” Cortlandt v. Westchester Cty., No.
07 Civ. 1783 (MDF), 2007 WL 3238674, at *5 (S.D.N.Y. Oct. 31, 2007). Lastly, the Sixth Amendment right to
counsel is inapplicable in civil cases. Accordingly, Plaintiff’s claims that her First, Fifth, and Sixth Amendment
rights were violated are DISMISSED.

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that plaintiff was conscious of the confinement and did not consent to it, and (3) that the
confinement was not otherwise privileged. See Jocks v. Tavernier, 316 F.3d 128, 134-35 (2d
Cir. 2003) (quoting Broughton v. State, 37 N.Y.2d 451 (1975)); see also Posr v. Doherty, 944
F.2d 91, 96 (2d Cir. 1991) (“In New York, the tort of false arrest is synonymous with that of
false imprisonment.”). Because there appears to be no dispute that Plaintiff was intentionally
confined and that she was aware of it and did not consent, the only disputed element is whether
the officers were authorized to confine her.
Pursuant to New York Mental Hygiene Law (“MHL”) § 9.41, a police officer is
authorized to “take into custody any person who appears to be mentally ill and is conducting . . .
herself in a manner which is likely to result in serious harm to the person or others.” N.Y.
Mental Hyg. Law § 9.41. “Likely to result in serious harm” is defined as:
(a) a substantial risk of physical harm to the person as manifested by threats of or
attempts at suicide or serious bodily harm or other conduct demonstrating that the
person is dangerous to himself or herself, or (b) 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.
N.Y. Mental Hyg. Law § 9.01. The officer may direct the removal of such person or directly
remove her to an approved hospital or psychiatric emergency program. Id. “In assessing
whether an officer had probable cause to arrest a person under this statute, courts apply the same
objective reasonableness standard that governs Fourth Amendment claims.” Arroyo v. City of
N.Y., No. 14 Civ. 9953 (JPO), 2016 WL 8677162, at *3 (S.D.N.Y. July 8, 2016), aff’d, No. 162425-CV, 2017 WL 1087926 (2d Cir. Mar. 21, 2017); see also Kerman v. City of New York, 261
F.3d 229, 240 n.8 (2d Cir. 2001). The question thus becomes whether the facts and
circumstances known to the officers at the time they seized Plaintiff were sufficient to warrant a
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person of reasonable caution to believe that she might be mentally ill and conducting herself in a
manner likely to result in serious harm to herself or others. Dunkelberger v. Dunkelberger, No.
14 Civ. 3877 (KMK), 2015 WL 5730605, at *12 (S.D.N.Y. Sept. 30, 2015). “Courts have held
that a showing of probable cause in the mental health seizure context requires only a probability
or substantial chance of dangerous behavior, not an actual showing of such behavior.” Heller v.
Bedford Cent. Sch. Dist., 144 F. Supp. 3d 596, 622 (S.D.N.Y. 2015) (internal quotation marks
and citation omitted), aff’d, 2016 WL 6561491 (2d Cir. Nov. 4, 2016).
Here, Plaintiff alleges that she met with Sergeant Bouillon at the 5th Precinct on
December 30, 2014 to “investigate [a] verichip-locator which [was] implanted into her body.”
Amended Complaint at 4. The Amended Complaint does not indicate what, if anything,
Sergeant Bouillon said or what the outcome of the meeting was. Weeks later, on January 18,
2015, Plaintiff returned to the Precinct to report a burglary and to request further assistance with
“pinpointing and removing a tracking device that had been placed into her body.” Id. When it
was suggested that she go to the hospital, she demurred because she was busy and not dressed
properly. She did, however, indicate that she would “go at a later date.” Id. Plaintiff asserts that
at no point during this interaction did she pose a danger to herself or others. Id. Nevertheless,
the lieutenant called an ambulance. When the EMTs arrived, Plaintiff claims that she informed
them about the verchip-locator and again stated that she did not wish to go to the hospital.
Plaintiff asserts that she was forcibly handcuffed, dragged into the ambulance and taken to the
hospital.
Taking Plaintiff’s facts as true—as the Court is required to do at this stage—the Court
finds that it cannot determine whether there was probable cause to detain Plaintiff pursuant to the
MHL. Although Plaintiff’s statements regarding the locator chip implanted in her body may
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have been concerning evidence of a mental health issue, Plaintiff does not describe any actions
on her part from which the Court can infer that she engaged in any violent or aggressive behavior
at the time the ambulance was called, or even that there was a “probability or substantial chance”
that she would engage in such dangerous behaviror. Courts in this Circuit have allowed
complaints to survive the motion to dismiss stage where it is unclear whether the plaintiff
actually posed a danger to herself or others. See Amid v. Police Officer Thomas R. Lamb (in His
Individual Capacity), No. 14 Civ. 3151 (LDW), 2016 WL 1070814, at *3–*4 (E.D.N.Y. Mar. 15,
2016) (noting that plaintiff conceded that she called a hotline contemplating suicide, but denying
motion to dismiss because it was disputed whether plaintiff posed a danger to herself or others
when officers arrived at her home); see also Amato v. Hartnett, 936 F. Supp. 2d 416, 435
(S.D.N.Y. 2013) (crediting plaintiff’s allegations that he had not made any statements indicating
that he was contemplating hurting himself, and holding that question of whether plaintiff posed a
“substantial risk of physical harm” to himself for others was a question of fact for the jury).
Moreover, refusal to accept medical treatment, by itself, does not establish that a person
poses a threat to herself or others. See Schoolcraft v. City of N.Y., 103 F. Supp. 3d 465, 505
(S.D.N.Y. 2015), on reconsideration in part, 133 F. Supp. 3d 563 (S.D.N.Y. 2015) (denying
summary judgment because although plaintiff refused medical treatment, the record was devoid
of any violent behavior or indication that he posed a danger to himself or others); see also Myers
v. Patterson, 819 F.3d 625, 634 (2d Cir. 2016) (noting that a “person may be annoyed,
uncooperative, and irrational without presenting a danger to herself or of violence to others” and
vacating district court’s grant of qualified immunity to officer defendant for lack of evidence
substantiating plaintiff’s dangerousness).

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Accordingly, Plaintiff’s claims against the unnamed lieutenant and Officer Decagna
survive the motion to dismiss stage. However, because Plaintiff does not allege that Sergeant
Bouillon was involved in the seizure or decision to transport her to the hospital, the claims
against him are DISMISSED.
2. Municipal Liability
“[T]o prevail on a claim against a municipality under section 1983 based on acts of a
public official, a plaintiff is required to prove: (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 caused the constitutional injury.” Roe v. City of Waterbury,
542 F.3d 31, 36 (2d Cir. 2008) (citing Monell v. Dep’t of Soc. Servs. of City of New York, 436
U.S. 658, 690–91 (1978). “The fifth element reflects the notion that ‘a municipality may not be
held liable under § 1983 solely because it employs a tortfeasor.’” Hayes v. Cnty. of Sullivan, 853
F. Supp. 2d 400, 438-39 (S.D.N.Y. 2012) (quoting Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397,
403 (1997)). Thus, a plaintiff must allege that such a municipal policy or custom is responsible
for his injury. Brown, 520 U.S. at 403-04; see also Connick v. Thompson, 131 S. Ct. 1350, 1359
(2011) (“A municipality or other local government may be liable under [§ 1983] if the
governmental body itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be
subjected’ to such deprivation.”) (quoting Monell, 436 U.S. at 692). Here, Plaintiff does not
allege the existence of a City policy or custom that caused her injuries. She also does not allege
that the officers involved in her arrest were decisionmakers or improperly trained.
Accordingly, the City’s motion to dismiss Plaintiff’s claims against it is GRANTED.

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B. NYCHH’s Motion
Plaintiff alleges that the NYCHH and its staff violated her right to procedural and
substantive due process under the Fourteenth Amendment by involuntarily committing her to
Bellevue Hospital. The NYCHH staff includes Doctors Lyons, Hawkins, Penestti, Howard,
Udarbe, Song; Nurses Charlene, Phunstock, Behrens, Lam, Velasco, Zenaida, Hsu; and Chiu, a
social worker. Plaintiff also asserts her claims against Chen, Williams, an advocacy director, and
Daridson, who works at the Medicaid Office at Bellevue Hospital. Amended Complaint at 2–8.
1. Claims Against Individual NYCHH Employees
As an initial matter, NYCHH argues that the claims against nurses Charlene, Phunstock,
Behrens, Lam, Velasco, Zenaida and Hsu, and the other Bellevue employees, including Chiu,
Chen, Williams, and Daridson should be dismissed because Plaintiff does not sufficiently allege
that they were personally involved in a constitutional deprivation. NYCHH Supp. at 12.
The Court agrees. Plaintiff’s conclusory statement that the nurses “directly participated
in and facilitated” her confinement and that Williams and Daridson included false statements in
her records are insufficient to state a cause of action against them. Similarly, Plaintiff fails to
adequately allege facts to support claims against Chiu, a social worker, and Chen, a licensed
therapist. Plaintiff claims that Chiu made a number of false allegations in her assessment,
including that Plaintiff “swung at the EMT” and that she was engaging in “violence or
endangering others.” Amended Complaint at 8. She also alleges that Chen wrote that she “was a
danger to self” and that she had “poor coping skills.” Id. A review of these records indicates
that both Chiu and Chen were merely summarizing what had been reported to them as the reason
for Plaintiff’s admission to the hospital. See Plaintiff’s Medical Records at 93 (including Chiu’s
assessment and stating that Plaintiff “required restraints in the ambulance but got out and swung
14

at the EMT”); id. at 344 (including Chen’s assessment stating that “Patient was admitted to [the
hospital] for danger to self”). Chen’s individual assessment that Plaintiff had “poor coping
skills,” does not create liability for a constitutional violation. Accordingly, Plaintiff’s claims
against Charlene, Phunstock, Behrens, Lam, Velasco, Zenaida, Hsu, Chiu, Chen, Williams, and
Daridson are DISMISSED. 5
i.

Procedural Due Process

Plaintiff asserts that the doctors at Bellevue did not perform an independent assessment
of her, but rather relied on the erroneous allegations made by the emergency medical personnel.
Amended Complaint at 4–5. She also claims that she requested hearings to challenge her
confinement, but that her requests were ignored. Id. at 7.
New York Mental Hygiene Law § 9.39 provides for the temporary involuntary
commitment of persons to mental health facilities:
The director of any hospital maintaining adequate staff and facilities for the
observation, examination, care, and treatment of persons alleged to be mentally ill
. . . may receive and retain therein as a patient for a period of fifteen days any person
alleged to have a mental illness . . . which is likely to result in serious harm to
himself or others.

N.Y. Mental Hyg. Law § 9.39(a). The patient must be given a statement of her status and her
rights at the time of admission, and the Mental Hygiene Legal Service 6 must be notified. Id.; see
also Fisk v. Letterman, 501 F. Supp. 2d 505, 514 (S.D.N.Y. 2007). If a person admitted

5
The Court also dismisses Plaintiff’s claims against Official Annmarie Britten-Franklin. The Amended Complaint
alleges that “Plaintiff has been implanted the verichip-locator in her body, inquire deeply into the cause of
happening above things, the actor is NYS WCDB, by Annmarie Britten-Franklin.” Amended Complaint at 8. This
allegation is insufficient to state a claim under Section 1983 against Britten-Franklin.
6

The Mental Hygiene Legal Service is a New York State agency responsible for representing, advocating and
litigating on behalf of individuals receiving services for a mental disability.
https://www.nycourts.gov/courts/ad2/mhls_mainpage.shtml

15

according to Section 9.39 is to be retained in the hospital for a period of more than forty-eight
hours, then (within that forty-eight hour period) “another physician who shall be a member of the
psychiatric staff of the hospital” must examine the person and confirm that she “qualifies under
the requirements of Section 9.39. N.Y. Mental Hyg. Law § 9.39; see also Phelps v. Bosco, No.
13 Civ. 1510 (GTS), 2017 WL 437407, at *6 (N.D.N.Y. Feb. 1, 2017). Upon request, a hearing
must be held within five days of the patient’s admission to determine whether there is reasonable
cause to believe that the patient has a mental illness for which immediate inpatient care and
treatment is appropriate and which is likely to result in serious harm to herself or others. N.Y.
Mental Hyg. Law § 9.39. The Second Circuit has held that the MHL meets the requirements of
procedural due process. See Project Release v. Prevost, 722 F.2d 960, 973 (2d Cir. 1983); see
also Fisk, 501 F. Supp. 2d at 514. Therefore, if Defendants’ actions comported with the
“strictures of [the MHL], they also satisfied the requirements of procedural due process.”
Capellupo v. Nassau Health Care Corp., No. 06 Civ. 4922 (JFB), 2009 WL 1705749, at *7
(E.D.N.Y. June 16, 2009).
Based on Plaintiff’s allegations and the medical records upon which she relies, the Court
finds that the procedural requirements for involuntary confinement were met. Plaintiff was
admitted pursuant to Section 9.39 and a form was completed detailing the reasons for her
confinement. See Plaintiff’s Medical Records at 28. 7 Hours after she was transported to
Bellevue Hospital, a physician examined her and found that confinement pursuant to Section
9.39 was appropriate because there was reasonable cause to believe that she had a mental illness

7

As noted previously, NYCHH submitted under seal a copy of Plaintiff’s medical records as an Exhibit to its
supplemental memoranda. Plaintiff also attached a copy of these medical records to her supplemental submissions
and argued that NYCHH had obtained her medical records improperly. See Docs. 91, 92.

16

that would likely result in serious harm to herself or others. 8 Id. Plaintiff was given notice of
her status and rights. Id. at 30. On January 19—less than forty-eight hours after admission—
Plaintiff was examined by another physician who found that she was suffering from psychosis,
was delusional, and unable to take care of herself. The physician determined that she was at risk
of serious harm to herself or others and that involuntary confinement was appropriate. 9 Id. at 29.
On January 23, Plaintiff made a request for a court hearing to challenge her involuntary
confinement, which was received on January 26, 2015. Id. at 43. The hearing was scheduled for
January 27, 2015. Id. at 42. The hearing was ultimately postponed until February 3, 2015.
Within fifteen days of her admission, the Director at Bellevue completed an application
for Plaintiff to be admitted pursuant to Section 9.27, which allows the director of a hospital to
retain a patient “alleged to be mentally ill and in need of involuntary care and treatment.” 10 Id. at

8

Specifically, Dr. Hawkins noted that Plaintiff’s
likely chronic psychosis has led to violence today and puts her at significant risk of harm to herself
as well. Thus she meets criteria for involuntary admission and will be admitted 9.39. She is at
chronically increased risk of danger to self and others given history of chronic delusions. She is at
acutely elevated risk given the intensity of her delusions that led to violence today and impaired
decision making that could have led to her being injured by NYPD for her threatening behavior.

Plaintiff’s Medical Records at 91.
9

N.Y. Mental Hyg. Law § 9.39(a)(2) provides that
[t]he 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.

10

N.Y. Mental Hyg. Law § 9.39(b) provides that
[w]ithin fifteen days of arrival at the hospital, if a determination is made that the person is not in
need of involuntary care and treatment, he shall be discharged unless he agrees to remain as a
voluntary or informal patient. If he is in need of involuntary care and treatment and does not agree
to remain as a voluntary or informal patient, he may be retained beyond such fifteen day period only
by admission to such hospital or another appropriate hospital pursuant to the provisions governing
involuntary admission on application supported by medical certification and subject to the

17

32–33; N.Y. Mental Hyg. Law § 9.27. The application was accompanied by the certifications of
two doctors who examined her separately. Id. at 34–37; see N.Y. Mental Hyg. Law § 9.27
(requiring certificates of “two examining physicians, accompanied by an application for the
admission” of a patient). The doctors found Plaintiff to be suffering from “worsening psychosis”
and “persecutory delusions,” and recommended that she remain in the hospital for treatment. Id.
Plaintiff was given notice of this attempt to change her status. Id. at 38. The medical records
also indicate that Plaintiff made a subsequent request for a court hearing, on January 30, to
challenge her confinement, which was addressed at the February 3 hearing. Id. at 40. Thus,
Plaintiff was afforded all of the process she was due.
Accordingly, NYCHH’s motion to dismiss Plaintiff’s procedural due process claim is
GRANTED.
ii.

Substantive Due Process

Plaintiff alleges that the Bellevue Hospital doctors had no basis for her confinement and
that because she refused to take medication, the hospital staff concealed the medicine in her
food. Amended Complaint at 6. NYCHH argues that Plaintiff’s claims against the Bellevue
Hospital doctors should be dismissed because their actions in treating Plaintiff were not a
“substantial departure from accepted judgment, practice, or standards.” NYCHH Supp. at 8.
“As a substantive matter, due process does not permit the involuntary hospitalization of a
person who is not a danger either to herself or to others.” Rodriguez v. City of New York, 72 F.3d
1051, 1061 (2d Cir. 1995) (citing O’Connor v. Donaldson, 422 U.S. 563, 575 (1975)). Further,
the right to refuse medication is protected by the Due Process Clause of the Fourteenth

provisions for notice, hearing, review, and judicial approval of retention or transfer and retention
governing such admissions, provided that, for the purposes of such provisions, the date of admission
of the patient shall be deemed to be the date when the patient was first received under this section.

18

Amendment and is derived from the New York Code of Rules and Regulations, which provides
that “[p]atients who object to any proposed medical treatment or procedure . . . may not be
treated over their objection except” in narrow circumstances, including “where the patient is
presently dangerous and the proposed treatment is the most appropriate reasonably available
means of reducing that dangerousness.” 14 N.Y.C.R.R. § 527.8(c)(1). However, due process
does not “require a guarantee that a physician’s assessment of the likelihood of serious harm be
correct.” Rodriguez, 72 F.3d at 1062. Therefore, “a doctor will not be liable under § 1983 for
the treatment decisions she makes unless such decisions are ‘such a substantial departure from
accepted judgment, practice, or standards as to demonstrate that [she] actually did not base the
decision on such a judgment.’” Kulak v. City of New York, 88 F.3d 63, 75 (2d Cir. 1996).
The Second Circuit has determined that a doctor’s decision to commit someone
involuntarily under the MHL “does not ordinarily involve matters ‘within the layman’s realm of
knowledge.’” Olivier v. Robert L. Yeager Mental Health Ctr., 398 F.3d 183, 190 (2d Cir. 2005)
(quoting Sitts v. United States, 811 F.2d 736, 740 (2d Cir. 1987)). The decision is “‘based on
medical ‘impressions’ drawn from subjective analysis and filtered through the experience of the
diagnostician.’” Id. Thus, whether it violates a person’s right to substantive due process “‘turns
on the meaning of the facts which [typically] must be interpreted by expert psychiatrists and
psychologists.’” Id. at 191 (emphasis and alteration in original) (quoting Addington, 441 U.S. at
429). Therefore, in order to demonstrate an objective violation of those standards, a plaintiff
ordinarily must introduce expert testimony to establish the relevant medical standards that were
allegedly violated.
Here, Plaintiff alleges that she did not engage in any conduct while at the hospital that
would indicate that she was a danger to herself or others. As a result, her confinement and the
19

subsequent administration of anti-psychotic drugs without her consent were a violation of her
rights. The physicians found Plaintiff to be psychotic and delusional, however, based on the
Court’s review, the medical records submitted by the NYCHH and Plaintiff appear to bear out
her claim that she was not a danger to herself or others. The medical records indicate Plaintiff
generally presented a “low risk” for suicide, appeared calm, and did not engage in aggressive or
violent behavior during her stay at Bellevue Hospital. See Plaintiff’s Medical Records at 65
(record for 1/18/15 noting absence of any physically or verbally threatening behavior), 121, 133
(record for 1/19/15 noting same and that Plaintiff was “quiet and calm”), 137 (record for 1/20/15
noting same and that “no aggressive behavior [by Plaintiff] presented so far”), 157 (record for
1/21/15 noting same and that Plaintiff exhibited a “safe disposition”), 183 (record for 1/22/15
noting Plaintiff had no “insight into her illness” and that there had been no “aggressive behavior
so far”), 204 (record for 1/24/15 noting that Plaintiff “was calm” and that there had been “no
incidence of elopement or assault throughout the shift”), and 311 (record for 2/2/15 noting that
Plaintiff “was calm and free of behavioral problems during this tour”). The records also indicate
that the hospital staff did not administer anti-psychotic drugs, but rather gave her amlopidine,
with her consent, to address her high blood pressure. Id. at 105. Thus, taking Plaintiff’s
allegations as true, the Court finds that whether the doctors’ decision to involuntarily commit
Plaintiff was a substantial departure from accepted practice is not proper for resolution at the
motion to dismiss stage. Consequently, NYCHH’s motion to dismiss Plaintiff’s claims against
NYCHH and its doctors is DENIED.
2. Municipal Liability
As with the claims against the City, to assert a claim against the NYCHH, Plaintiff was
required to allege that a NYCHH policy or custom is causally connected to the alleged
20

constitutional deprivation. The Amended Complaint does not refer to any NYCHH policy or
custom. Accordingly, Plaintiff’s claims against the NYCHH are DISMISSED.
C. Ryan NENA’s Motion to Dismiss
Plaintiff asserts claims against Ryan NENA for implanting a locator chip into her chest,
for conducting illegal blood testing, and for failure to provide a complete set of medical records
to her upon request. Amended Complaint at 9–10. Ryan NENA moves to dismiss Plaintiff’s
claims for lack of subject matter jurisdiction pursuant to Rule 12(b)(1).
Under the Federal Torts Claims Act (“FTCA”), a claimant must exhaust all
administrative remedies with the appropriate federal agency—here, the Department of Health
and Human Services (“HHS”)—prior to filing a complaint in federal district court. Porter v.
Hirsch, 345 F. Supp. 2d 400, 403 (S.D.N.Y. 2004); see also 28 U.S.C. § 2675(a) (“An action
shall not be instituted upon a claim against the United States for money damages for injury . . . or
personal injury or death caused by the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or employment, unless the claimant
shall have first presented the claim to the appropriate federal agency”). The exhaustion
requirement under Section 2675(a) is jurisdictional, and failure to exhaust administrative
remedies prior to bringing a claim under the FTCA divests the district court of subject matter
jurisdiction over that claim. Bueno v. Sheldon, No. 99 Civ. 1034 (JGK), 2000 WL 565192, at *4
(S.D.N.Y. May 9, 2000). The Amended Complaint is silent as to whether Plaintiff presented her
claims to HHS. Because Plaintiff has failed to file an administrative claim, as required by
Section 2675, the Court lacks subject matter jurisdiction over this action. See Porter, 345 F.
Supp. 2d at 403 (dismissing action for lack of subject matter jurisdiction due to plaintiff’s failure
to file administrative claim with HHS).
21

Additionally, the Court finds that Ryan NENA is not a proper defendant in this matter.
The Federally Supported Health Care Center Assistance Act of 1992 (“FSHCAA”), 42 U.S.C. §
233, extended Federal Torts Claims Act coverage to certain health centers that receive federal
funding under Section 330 of the Public Health Service Act by authorizing the Department of
Health and Human Services (“HHS”) to “deem” them employees of the Public Health Service.
See 42 U.S.C. § 233(g)-(n). Once deemed Public Health Service employees, a community health
center and its employees enjoy immunity for their acts which relate to their employment, and any
actions against them are treated as actions against the United States. 42 U.S.C. § 233(a). Thus, a
plaintiff’s remedy for alleged negligence by deemed health centers and their employees “shall lie
against the United States only.” Id.
Here, as evidenced by the “Deeming Notices” issued by the Health Resources and
Services Administration and attached to its motion, Ryan NENA was deemed a Public Health
Service employee for purposes of the FSHCAA during the relevant time period. Affirmation of
Lienne Pisano (Doc. 50), Ex. D. Thus, Ryan NENA, and its employees—Doctors Becky Lou
and Khin Win, and interpreter Mey Leon Chen—are not the correct defendants. Plaintiff should
have filed the action against the United States.
Accordingly, Ryan NENA’s motion to dismiss Plaintiff’s claims against Ryan NENA and
its employees is GRANTED.
D. FedEx’s Motion
Plaintiff claims that FedEx’s alleged actions causing the delay in delivering her
Complaint to NYS DOH is a “wanton[] violation of [her] human rights.” Amended Complaint at
13. FedEx argues that it cannot be held liable under Section 1983 because it is not a state actor.
Defendant Federal Express Corporation’s Motion to Dismiss & Memorandum of Law in Support
22

(“FedEx Memo”) (Doc. 41) at 4. Moreover, even if could be considered a state actor, Plaintiff
has failed to adequately allege that FedEx violated a federal constitutional right. Id.
To sustain a claim under Section 1983, a plaintiff must first establish that a defendant
acted under color of state law. Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d
255, 257 (2d Cir. 2008). To constitute state action, there must be an alleged deprivation of a
federal right “caused by the exercise of some right or privilege created by the State or by a rule
of conduct imposed by the State or by a person for whom the State is responsible,” and “the
party charged with the deprivation must be a person who may fairly be said to be a state actor.”
Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); see also Den Hollander v. Copacabana
Nightclub, 624 F.3d 30, 33 (2d Cir. 2010) (referring to and applying the “two prong” test
outlined in Lugar).
The Court finds that FedEx is not a state actor for the purposes of Plaintiff’s Section 1983
claim. FedEx is a private entity and the Amended Complaint does not allege that FedEx, by
purportedly delaying her mailings, acted under color of state law. Accordingly, FedEx’s motion
to dismiss is GRANTED.
V.

Conclusion
For the reasons set forth above, Defendants motions are GRANTED in part and DENIED

in part, as summarized below:
•

The City’s motion to dismiss Plaintiff’s claims against the City is GRANTED.

•

NYCHH’s motion to dismiss Plaintiff’s claims against NYCHH is GRANTED.

•

Ryan NENA’s motion to dismiss is GRANTED.

•

FedEx’s motion to dismiss is GRANTED.

23