Colindres v. County of Westchester, New York et al
Filing
155
OPINION & ORDER re: 132 MOTION for Summary Judgment . filed by Sherlita Amler, Germaine Jacquette, Laural Skelson, County of Westchester, New York, Cheryl Archbald, Huang, 133 FIRST MOTION for Summary Judgment . fi led by Westchester Medical Center. The Defendants' motions for summary judgment are GRANTED in part and DENIED in part. Summary judgment is granted on all of Plaintiff's claims against Defendants Westchester Medical Center and Miral A. Subhani. Summary judgment is granted on Plaintiff's Section 1983 Fourth Amendment and substantive due process claims, malicious prosecution claim and false imprisonment claims against the WCDOH Defendants. All claims against John Does #1 - 3 and Jane Does # 1 - 3 are dismissed without prejudice. Plaintiff's remaining claims are Section 1983 First Amendment retaliation and state law abuse of process against WCDOH Defendants. The Clerk of the Court is respectfully directed to term inate the motions at ECF Nos. 132 and 133, enter judgment in favor of Defendants Westchester Medical Center and Miral A. Subhani, and remove Defendants Westchester Medical Center and Mirnl A. Subhani from the case caption. The remaining parties ar e directed to appear for a telephonic pre-trial conference on February 24, 2021 at 2:00 P.M. To access the telephonic pre-trial conference, please follow these directions: (1) Dial the Meeting Number: (877) 336-1839; (2) Enter the Access Code: 12 31334 #; (3) Press pound (#) to enter the conference as a guest. SO ORDERED., ( Telephone Conference set for 2/24/2021 at 02:00 PM before Judge Nelson Stephen Roman.) (Signed by Judge Nelson Stephen Roman on 12/18/20) (yv) Transmission to Orders and Judgments Clerk for processing.
Case 7:16-cv-03013-NSR Document 155 Filed 12/18/20 Page 1 of 63
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
M.C.,
Plaintiff,
-againstCOUNTY OF WESTCHESTER, NEW YORK;
WESTCHESTER MEDICAL CENTER; CHERYL
ARCHBALD; IRMA W. COSGRIFF; ADA
HUANG; LAUREL SKELSON; GERMAINE
JACQUETTE; MIRAL A. SUBHANI; SHERLITA
AMLER; JOHN DOES #1 – #3, and JANE DOES
#1 – #3,
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 12/18/2020
16-cv-3013 (NSR)
OPINION & ORDER
Defendants.
NELSON S. ROMÁN, United States District Judge
Before the Court are the motions for summary judgment filed by Defendants: (1) Sherlita
Amler, Cheryl Archbald, County of Westchester, New York, Ada Huang, Germaine Jacquette, and
Laural Skelson (collectively, the “WCDOH Defendants”) (ECF No. 132); and (2) Westchester
Medical Center and Dr. Miral A. Subhani (collectively, the “WMC Defendants”) (ECF No. 133).
For the reasons discussed below, Defendants’ motions are GRANTED in part and DENIED in
part.
BACKGROUND
The Opinion assumes the parties’ familiarity with the underlying claims, factual
allegations, and procedural history in this matter. To briefly summarize, this action arises out of
Plaintiff’s (referred to herein as “Plaintiff” or “M.C.”) involuntary hospitalization at Westchester
Medical Center (“WMC”) between April 23, 2015 and June 22, 2015. Prior to his involuntary
hospitalization, Plaintiff had been diagnosed with Tuberculosis (“TB”). On March 4, 2015, after
WCDOH Defendants submitted affidavits and testified during a court proceeding (which Plaintiff
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did not attend) before the Honorable Justice Lester Adler, New York Supreme Court Westchester
County (“Justice Adler”), Justice Adler issued an Order and Decision authorizing Plaintiff’s
involuntary hospitalization pursuant to New York Public Health Laws § 2120 (“PHL § 2120”) for
a period of thirty (30) days after his initial arrest. Plaintiff was apprehended on April 23, 2015.
During the intervening time between Justice Adler’s Order and Plaintiff’s initial arrest, Plaintiff
received outpatient treatment with a private physician, Dr. James Cooke, and experienced
documented side effects often associated with the ingestion of anti-TB medication. WCDOH
Defendants, through correspondence with Dr. Cooke, became aware of certain developments in
Plaintiff’s treatment.
Following his arrest, Plaintiff objected to his continued hospitalization, largely complied
with the medication regimen prescribed to him by the physicians at WMC, and provided some, but
not all, of the sputum samples for testing that were requested by his physicians because he disputed
the clinical necessity of additional testing. During his detention, Plaintiff obtained legal counsel
and filed a notice of claim indicating that he intended to bring a legal action against the WCDOH
Defendants and WMC Defendants. On May 18, 2015, after becoming aware of the notice of claim,
and as the expiration of Justice Adler’s March 4, 2015 order was approaching, WCDOH
Defendants filed an order to show cause application to Justice Adler seeking an extension of
Plaintiff’s confinement for an additional 60 days. Prior to the hearing on WCDOH Defendants’
order to show cause application, Plaintiff’s counsel and WCDOH Defendants’ counsel agreed to
several adjournments—first through June 2, 2015, and then through June 18, 2015—and agreed to
Plaintiff’s continued hospitalization at WMC until the hearing could be conducted.
At the June 18, 2015 hearing, the parties presented Justice Adler with an agreement to
discharge Plaintiff subject to several conditions relating to Plaintiff’s testing, clinical
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improvement, and the provision of out-patient treatment for Plaintiff after his discharge from
WMC, which was memorialized and so-ordered in Justice Adler’s June 22, 2015 Decision and
Order. Plaintiff was ultimately discharged from WMC on June 22, 2015.
WCDOH Defendants have now moved for summary judgment on Plaintiff’s federal claims
of Section 1983 Fourth Amendment unlawful seizure, substantive due process violation, and First
Amendment retaliation, and state law claims for false imprisonment, malicious prosecution, and
malicious abuse of process. (See WCDOH Defendants’ Memorandum of Law in Support of the
Motion for Summary Judgment (“WCDOH Moving Br.”) (ECF No. 132-25); WCDOH
Defendants’ Memorandum of Law in Reply (“WCDOH Reply”) (ECF No. 147).) WMC
Defendants have moved for summary judgment as to the claims pending against them – i.e., state
law claims for false imprisonment, malicious prosecution, and malicious abuse of process. (See
WMC Defendants Memorandum of Law (“WMC Moving Br.”) (ECF No. 135); WMC Defendants
Reply Memorandum of Law in Further Support of Defendants’ Summary Judgment Motion
(“WMC Reply”) (ECF No. 139).) Plaintiff argues that genuine issues of material fact preclude
summary judgment with respect to all causes of action. (See Plaintiff’s Memorandum of Law in
Opposition to Defendants’ Motions for Summary Judgment (“Pltf Opp.”) (ECF No. 138).) The
motions were fully briefed as of December 6, 2019. (See ECF Nos. 132 & 133.)
STANDARD ON A MOTION FOR SUMMARY JUDGMENT
A motion for summary judgment may be granted only where there is no genuine dispute
as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(a),
Fed. R. Civ. P.; see also Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 113-14
(2d Cir. 2017). “A genuine issue of material fact exists if ‘the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.’” Nick’s Garage, 875 F.3d at 113-14 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Whether particular facts are material
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is determined by the substantive law. Anderson, 477 U.S. at 248. “The same standard applies
whether summary judgment is granted on the merits or on an affirmative defense ....” Giordano
v. Market Am., Inc., 599 F.3d 87, 93 (2d Cir. 2010).
The moving party bears the initial burden of informing the court of the basis for its motion
and identifying the admissible evidence it believes demonstrates the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets
this burden, the nonmoving party must set forth specific facts showing that there is a genuine issue
for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). He cannot “rely on conclusory
allegations or unsubstantiated speculation’ but ‘must come forward with specific evidence
demonstrating the existence of a genuine dispute of material fact.’” Robinson v. Concentra Health
Servs., 781 F.3d 42, 34 (2d Cir. 2015) (quotation marks and citation omitted). To defeat a motion
for summary judgment, the nonmoving party must present such evidence as would allow a jury to
find in his favor. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).
DISCUSSION
I.
Plaintiff’s Fourth Amendment Claim
“The Fourth Amendment prohibits ‘unreasonable searches and seizures.’” Ganek v.
Leibowitz, 874 F.3d 73, 81 (2d Cir. 2017) (quoting U.S. Const. amend. IV). “For a seizure to be
reasonable, it must generally be supported by probable cause.” Mara v. Rilling, 921 F.3d 48, 69
(2d Cir. 2019). “The Fourth Amendment’s protection applies in civil context” and “applies to
involuntary commitment.” Glass v. Mayas, 984 F.2d 55, 58 (2d Cir. 1993). Thus, “[t]he Fourth
Amendment requires that an involuntary hospitalization may be made only upon probable cause,
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that is, only if there are reasonable grounds for believing that the person seized is subject to seizure
under the governing legal standard.” Id. (quotation omitted). 1
“[P]robable cause is a fluid concept” that “turn[s] on the assessment of probabilities in
particular factual contexts.” United States v. Clark, 638 F.3d 89, 94 (2d Cir. 2011) (quoting Illinois
v. Gates, 462 U.S. 213, 232 (1983)) (cleaned up). “The bulwark of Fourth Amendment protection,
of course, is the Warrant Clause, requiring that, absent certain exceptions, police obtain a warrant
from a neutral and disinterested magistrate....” Franks v. Delaware, 438 U.S. 154, 165, 98 S.Ct.
2674, 57 L.Ed.2d 667 (1978). Probable cause is “a practical, common-sense decision whether,
given all the circumstances set forth in the affidavit . . . there is a fair probability” that the person
identified has committed the alleged crime or otherwise engaged in requisite conduct. Gates, 462
U.S. at 238.
Given the initial subjective standard, “a reviewing court generally accords substantial
deference to the finding of an issuing judicial office that probable cause exists, limiting [the]
1
The Court notes that the application of Fourth Amendment principles to a civil
confinement such as the one here necessarily involves scrutinizing a judicial order that was
issued under a more demanding standard than a traditional arrest warrant. PHL § 2120
authorizes involuntary detention upon a clear and convincing showing of dangerousness. See
Bradley v. Crowell, 181 Misc. 2d 529, 530, 694 N.Y.S.2d 617, 618 (Sup. Ct. Suffolk County,
1999). By contrast, the Fourth Amendment demands a showing of probable cause to authorize a
warrant. Accordingly, a Section 1983 Plaintiff’s Fourth Amendment claim concerning
involuntary confinement pursuant to PHL § 2120, such as the one asserted here, is seemingly
undermined by a less burdensome showing—i.e., dangerousness proven by a probable cause—
than the initial application for involuntary confinement pursuant to PHL § 2120—i.e., clear and
convincing evidence of dangerousness. Conceivably, Mayas sought to adjust the Fourth
Amendment standard—i.e., require a showing of clear and convincing evidence to authorize
seizure—in cases of involuntary confinement, such as the instant one, by instructing that
“involuntary hospitalization may be made only . . . if there are reasonable grounds for believing
that the person seized is subject to seizure under the governing legal standard.” 984 F.2d at 58
(emphasis added). No party made such an argument, and, in any event, the Court is not
confident that a seizure made upon probable cause, but not by clear and convincing evidence, is
actionable under the Fourth Amendment.
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inquiry to whether the office had a substantial basis for his determination.” United States v. Wey,
256 F. Supp. 3d 355, 382 (S.D.N.Y. 2017) (citation and internal quotations omitted). Nonetheless,
the presumption that a finding of probable cause by a judicial officer is reasonable can be overcome
when the defendant “(1) knowingly and deliberately, or with a reckless disregard of the truth
procured [the judicial finding], (2) based on false statements or material omissions, that (3) were
necessary to the finding of probable cause.” Ganek v. Leibowitz, 874 F.3d 73, 81 (2d Cir. 2017).
WCDOH Defendants asserts that, among other claims, Plaintiff’s Fourth Amendment
claim fails because Plaintiff’s involuntary confinement was authorized by Justice Adler’s March
4, 2015 Order and was supported by probable cause. Plaintiff counters that probable cause did not
exist, and accordingly his claim survives, because: (1) materials submitted in support of the
application to Justice Adler contained material misrepresentations and omissions; (2) even if
probable cause existed as of the time of the March 4, 2015 order, such probable cause was stale as
of April 23, 2015 (when he was ultimately detained); and (3) Plaintiff’s continued confinement
between May 23, 2015 and June 22, 2015 resulted from a separate order that only authorized his
confinement due to material misstatements and omissions submitted in connection with that
application.
A.
Alleged Misstatements in, and Omissions From, the Record Before Justice Adler
on March 4, 2015
“The materiality of a misrepresentation or an omission in this context is a mixed question
of law and fact. The legal component depends on whether the information is relevant to the
probable cause determination under controlling substantive law. But the weight that a neutral
magistrate would likely have given such information is a question for the finder of fact, so that
summary judgment is inappropriate in doubtful cases.” Velardi v. Walsh, 40 F.3d 569, 574 (2d
Cir. 1994) (citations omitted). “To determine whether a false statement was necessary to a finding
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of probable cause, we consider a hypothetical corrected affidavit, produced by deleting any alleged
misstatements from the original warrant affidavit and adding to it any relevant omitted
information.” Ganek, 874 F.3d at 82. If there is no probable cause after the correction, then the
“false statement was ‘necessary’ to secure issuance of the warrant.” Id. In performing the
correction, the court must “examine all of the information the officers possessed when they applied
for the arrest warrant.” Escalera v. Lunn, 361 F.3d 737, 744 (2d Cir. 2004).
Plaintiff argues that his Fourth Amendment claim survives, despite the issuance of a
warrant authorizing the involuntary seizure and confinement of Plaintiff, because the March 4
Order was allegedly procured through false representations.
Plaintiff identifies several
misstatements including that Defendants submitted an affidavit asserting that: (1) M.C. had been
educated about the need for DOT and knowingly disregarded that information; and (2) M.C.
continuously attended work and school and thus exposed the public to infection. (See Pltf Opp. at
23.) Plaintiff also asserts that WCDOH Defendants’ submissions omitted that Plaintiff had been
in the process of seeking medical appointments for weeks and had repeatedly asked for medication.
(See id.)
1.
Omissions Regarding Plaintiff’s Attempts to Obtain Medical Treatment
In support of Westchester County Department of Health’s (“WCDOH,” used herein to refer
to the agency as a whole rather than just the WCDOH Defendants) application for Plaintiff’s
involuntary confinement, WCDOH Defendants submitted affidavits that failed to include
exculpatory information regarding Plaintiff’s attempts to obtain medical attention. Chiefly,
Plaintiff observes that WCDOH Defendants failed to include that: (1) Plaintiff had asked both
Montefiore New Rochelle Hospital and WCDOH personnel to prescribe or furnish anti-TB
medications that he could self-administer; and (2) Plaintiff had been attempting to obtain medical
appointments and expressed that he was having trouble getting an appointment. (Pltf Opp. at 8-9
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(citing Plaintiff’s Counter-Statement of Facts Pursuant to Local Civil Rule 56.1 (“Pltf R.56.1
Statement”) (ECF No. 146) ¶ 83.) This information is relevant insofar as Plaintiff’s attempts to
obtain medical treatment are somewhat probative of whether or not he is dangerous to others –
e.g., if a person was not seeking to obtain medicine, then it is more likely than not that he or she
would remain untreated for an infectious disease.
Plaintiff is correct that this information was omitted in Dr. Huang’s affidavit. But Dr.
Huang’s affidavit was not the only evidence before Justice Adler. Instead, oral testimony before
Justice Adler introduced established key facts relating to Plaintiff’s attempts to obtain medical
treatment.
At an evidentiary hearing held on March 4, 2015, in advance of Plaintiff’s confinement,
Mr. John Castanda, community health worker, testified that: (1) on February 19, 2015, he provided
Plaintiff’s uncle with an x-ray referral and requested a sputum sample to be obtained from Plaintiff;
and (2) subsequently, on February 23, 2015, he received the sputum sample from the uncle and
“the uncle advised me that he had taken his nephew for an x-ray and he asked for medication. I
told him I did not have any medications for him, that he would need to present the nephew to the
clinic at some point so he can be evaluated and possibly given medication and follow up with the
doctors.” (ECF No. 143-6 at Hearing Tr. 51:10-15.) Likewise, Dr. Huang testified that Plaintiff
(through his uncle) cancelled an appointment with Dr. Lederman, that had been arranged through
the WCDOH, and informed Dr. Lederman that “he was going to see another doctor.” (ECF No.
143-6 at Hearing Tr. 30:19-31:4.)
Relatedly, Plaintiff takes issue with the Dr. Huang’s testimony that WCDOH personnel
“were able to get some specimens” of Plaintiff’s sputum “when he showed up in a hospital
emergency room here in Westchester” because it appears to diminish Plaintiff’s role in voluntarily
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complying with WCDOH’s request to furnish the sputum samples. (Pltf. Opp. at 9-10.) However,
even if this statement downplayed the degree to which Plaintiff cooperated with WCDOH
Defendants, it is of no moment because the verified petition, other affidavits, and testimony
presented to Justice Adler set forth in greater detail that Plaintiff had furnished the sputum samples
and arrived at the hospital at WCDOH’s request—i.e., the exact information that Plaintiff claims
was omitted. (See ECF No. 132-18 (WCDOH Ex. P) at MSEK 0009 & MSEK 0016; ECF No.
143-6 at Hearing Tr. 30:19-31:4.)
Viewing the record in the light most favorable to Plaintiff, WCDOH’s submissions to the
Court, including oral testimony, disclosed that Plaintiff requested medication from WCDOH
personnel, provided sputum samples and submitted to an x-ray examination at the request of the
WCDOH, and averred that Plaintiff represented that he made an appointment, or intended to
consult, with another doctor. The only details omitted were that: (1) Plaintiff also requested
medication from doctors at Montefiore New Rochelle Hospital and (2) Plaintiff inquired about
appointments for a medical consultation with doctors unaffiliated with the WCDOH that he did
not visit prior to the March 4, 2014 hearing. It is doubtful that WCDOH Defendants were even
aware of Plaintiff’s nascent medical appointments at the time of the March 4, 2015 hearing besides
being told by Dr. Lederman that Plaintiff advised him that he was going to see another doctor. In
any event, the Court will consider these additional details in conducting its corrected affidavit
analysis in order to ascertain their materiality.
2.
Misstatements Regarding Plaintiff’s Continued Presence at School and
Work
Plaintiff contends that the verified petition and certain affidavits submitted in support of
WCDOH’s application for Plaintiff’s involuntary hospitalization misrepresented the status of
Plaintiff’s continued attendance of work and school. The verified petition asserts that “[u]pon
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information and belief, [Plaintiff] continues to go to work and school.” (ECF No. 132-18
(WCDOH Ex. P) at MSEK 0010.) Similarly, the affidavit of Dr. Archbald asserts that “[u]pon
information and belief, [Plaintiff] continues to go to work and school via public transportation and
thus directly exposing [sic] the general public as well as repeatedly exposing his household
members, fellow co-workers and classmates to the TB disease.” (ECF No. 132-18 (WCDOH Ex.
P) at MSEK 0017.) The affidavit of Dr. Huang contains an identical statement. (ECF No. 132-18
(WCDOH Ex. P) at MSEK 0052.)
There appears to be a dispute as to when Plaintiff last attended school. Plaintiff contends
that he last attended school sometime in late February based on testimony from Dr. Huang that
she, in or around March 16, 2015, received an email indicating that Plaintiff had not been seen at
Labor Technical College since late February 2015. (See Pltf R.56.1 Statement ¶ 77 (citing ECF
No. 143-53 at Tr. 239:11-240:25).) However, WCDOH Defendants disputes this statement. (See
WCDOH Defendants’ Response to Plaintiff’s Counter-Statement of Facts Pursuant to Local Civil
Rule 56.1(b) (“WCDOH R.56.1 Resp.”) (ECF No. 148) ¶ 77.) Testimony from Dr. Huang and
Deputy Commissioner Archbald during the evidentiary hearing suggest that WCDOH had received
information from Plaintiff’s employer that he had attempted to attend classes on March 2, 2015.
For example, Dr. Huang testified that “from the best of our information, we believe up until this
Monday [i.e., March 2, 2015] he continued to go to work and school, which is in New York City.”
(ECF No. 143-6 at Hearing Tr. 35:17-19.) Archbald also testified that he spoke with the Labor
Technical College, advised them not to permit Plaintiff to physically attend classes, and was later
advised that Plaintiff had attempted to attend classes at the Labor Technical College on March 2,
2015 at approximately 7:45 a.m. (ECF No. 143-6 at Hearing Tr. 46:6-18.) The testimony from
Archbald is only somewhat different from Plaintiff’s contention – i.e., she testified that Plaintiff
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last sought to attend school on March 2, whereas Plaintiff contends he last attended school in late
February 2015.
There is also a dispute concerning when Plaintiff last attended work. Plaintiff contends
that he last attended work on February 21, 2015 based upon deposition testimony from Dr. Huang
(n.b., her deposition testimony reflected information obtained by WCDOH after the March 4, 2015
hearing). (Pltf R.56.1 Statement ¶ 76.) Archbald testified at the hearing that Plaintiff’s employer
disclosed to her during a phone call on February 27, 2015 that it had a record of Plaintiff attending
work two weeks earlier [i.e., approximately the week of February 9, 2015]. (ECF No. 143-6 at
Hearing Tr. 45:16-18.)
In sum, the record before Justice Adler was inconsistent and the parties still do not agree
as to Plaintiff’s ongoing work and school attendance. Nonetheless, the differences between the
oral testimony at the evidentiary hearing and Plaintiff’s current factual averments are marginal at
best. Written evidence introduced in advance of the hearing indicated that Plaintiff was attending
work in an ongoing capacity. By contrast, oral testimony before Justice Adler indicated that
Plaintiff last attended work either on February 17, 2015 or sometime during the week of February
9, 2015. Finally, Plaintiff now contends that he last attended work on February 21, 2015.
Likewise, written evidence indicated that Plaintiff was attending school in an ongoing capacity.
Oral testimony before Justice Adler indicated that he last attended school on March 2, 2015.
Whereas, Plaintiff now contends that he last attended school in or around late February.
Accordingly, the oral testimony at the March 4, 2015 hearing concerning the last date Plaintiff
attended school and work was only different by a matter of a few days from Plaintiff’s current
factual averments.
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Viewing the evidence in the light most favorable to Plaintiff, for the purposes of the
corrected affidavit analysis, the Court will correct the evidence introduced to Justice Adler to
reflect that Plaintiff last attended work on February 21, 2015 and last attended school sometime in
late February 2015.
3.
Misstatements Regarding Plaintiff’s Knowledge of Directly Observed
Therapy (DOT)
Plaintiff contends that Dr. Huang misrepresented Plaintiff’s knowledge of Directly
Observed Therapy (“DOT”) – i.e., the daily monitored administration of anti-TB medication by a
healthcare provider or public health employee to a person afflicted with TB in an in-patient or outpatient setting. Dr. Huang swore by affidavit that Plaintiff “has been notified of the importance to
treat his tuberculosis (TB) and to submit to, and cooperate with, Direct Observed Therapy (DOT)
and cooperate with taking all prescribed medications and all necessary medical evaluations and
testing for the treatment and monitoring of his active TB. By correspondence from me, dated
February 18, 2015, the Respondent was directed to report to the Westchester County Department
of Health Chest Clinic located at 134 Court Street in the City of White Plains . . . The Respondent
failed to comply with that directive.” (ECF 143-5 at COW_00072.)
The alleged misrepresentation is at least somewhat relevant to the determination of
Plaintiff’s dangerousness. Pursuant to PHL § 2120, persons like Plaintiff can be involuntarily
detained upon a finding that he or she is a “source of danger to others.” Whether a person was
apprised of the appropriate treatment is relevant to a determination of his or her dangerousness
because it is probative of whether that person was knowingly increasing the risk that others would
be exposed to infectious disease. For example, someone that is aware of the appropriate treatment
and willingly defying the administration of that treatment evidences his or her indifference to the
spread of infectious disease. By contrast, someone that is not aware of the appropriate treatment
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and not acquiring that treatment does not evidence his or her indifference to the spread of infectious
disease, and accordingly may be viewed as more capable of managing his or her illness responsibly
and without the need for intrusive government intervention once he or she is informed of necessary
precautions.
There is sufficient evidence for a jury to conclude that Dr. Huang’s statement was either
false or misleading. Dr. Huang was aware, or should have been aware, that efforts to directly
communicate information relating to DOT to Plaintiff by WCDOH had been unsuccessful. Indeed,
she testified at her deposition that as of February 2015 “all attempts [to try to talk to and visit
Plaintiff] had not been successful.” (ECF 143-53 at Tr. 90:13-22). Likewise, she stated that, as
of the time the letter was sent to Plaintiff on February 18, 2015 “we had not really been able to
have a conversation or what I call an interview of a person, which is our standard procedure when
a case or somebody who is infected with TB first comes to us.” (ECF 143-53 at Tr. 94:10-14).
Similarly, Dr. Huang testified that, as of February 25, 2015, “[l]ike I keep saying, we had no
contact with [Plaintiff] himself.” (ECF No. 143-53, Tr. 151:8-10). Dr. Huang also testified, with
respect to the state of knowledge regarding WCDOH’s understanding of Plaintiff’s treatment as
of February 22, 2015, that “we had no communication with [Plaintiff]. This is also secondhand
information. And so, we had no idea what [Plaintiff’s] plans or intentions were. We couldn’t
speak to him. So we don’t know what was communicated to him. We don’t know what the plan
was.” (ECF No. 143-53 at Tr. 197:6-13). It is also undisputed that “[WCDOH employees] did
not discuss DOT with M.C. during the only conversation M.C. had had with anyone from WCDOH
[prior to the March 4, 2015 hearing].” (WCDOH R.56.1 Resp. ¶ 82.)
WCDOH Defendants assert, without citation, that Ms. Skelson and Dr. Jacquette “informed
Plaintiff that it was imperative that he be evaluated by a doctor and begin receiving treatment and
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taking medication, and that it was absolutely necessary that he communicate with WCDOH. The
protocols and requirements for DOT were laid out for Plaintiff.” (WCDOH Reply at 4.) It is
possible that WCDOH Defendants are referring to their attempts to serve Plaintiff with a
Commissioner’s Order at Plaintiff’s designated residence (i.e., his uncle’s home) on February 25,
2015 and February 26, 2015. (Pltf R.56.1 Statement ¶ 60). The Commissioner’s Order directed
Plaintiff to “follow a course of directly observed therapy and receive all necessary anti-tuberculosis
medications prescribed by your treating physician” (ECF No. 132-17 at 6), and noted that
Plaintiff’s failure to adhere to medical advice to date “creates a substantial likelihood that without
a complete detailed program and schedule of directly observed therapy, [Plaintiff] will continue to
ignore medical advice and as a result you may spread the disease to others” (ECF No. 137-17 at
5). The Commissioner’s Order also contained a form document titled “Agreement For Directly
Observed Therapy (DOT)” which, among other things, represented that “it has been explained to
[the patient] that the most effective way to treat tuberculosis or tuberculosis infection is by
providing medication to the patient and having a trained health care worker observe the ingestion
of all oral medication administer injectables.” Plaintiff testified that he did not see that letter until
sometime in 2016. (ECF No. 143-52 at 91:24-92:5.)
At bottom, whether Plaintiff was informed of the necessity of DOT turns on the degree to
which Plaintiff’s testimony that he did not see the Commissioner’s Order until 2016 is credible. It
is inappropriate for this Court to make a credibility determination at this stage. Viewing the facts
in the light most favorable to Plaintiff, there is at the very least a factual dispute as to whether Dr.
Huang’s statement—i.e., that Plaintiff “has been notified of the importance to treat his tuberculosis
(TB) and to submit to, and cooperate with, Direct Observed Therapy (DOT)”—was a
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misrepresentation. Accordingly, for the purposes of the corrected affidavit analysis, the Court will
strike Dr. Huang’s statement that Plaintiff was informed about the importance of DOT.
It is worth noting that, although the Court strikes Dr. Huang’s testimony about Plaintiff’s
knowledge of DOT, the Court does not strike Dr. Huang’s other testimony regarding the necessity
of DOT as a clinical measure in general. The fact that a person infected with TB is not receiving
DOT is, separate and apart from that person’s knowledge of DOT, probative (though not
dispositive) of whether that person is a danger to others insofar as it indicates that the person may
be less likely to completely recover from TB, and therefore remain infectious to others. See
Lawrence O. Gostin, Tuberculosis and the Power of the State: Toward the Development of
Rational Standards for the Review of Compulsory Public Health Powers, 2 U. Chi. L. Sch.
Roundtable 219, 270–71 (1995) (“As a general matter, it is easy to construct a formidable case
favoring the state’s imposition of DOT. There exists considerable evidence that significant
numbers of persons with tuberculosis do not complete the full course of their medication. Studies
have shown treatment ‘noncompliance’ rates ranging from twenty-two to fifty-five percent. From
a strict public health perspective, it does not matter whether the principal cause of treatment failure
is based upon the inadequacy of health department services, the sheer difficulty of completing a
complicated and extended treatment regime, social/psychological/cultural factors beyond the
control of patients, or the willful non-compliance of patients. All of these factors probably
contribute to treatment failure.”).
4.
Materiality of the Misstatements and Omissions
In order to perform the corrected affidavit analysis, the Court asks whether Justice Adler
could have found probable cause after misstatements are removed from the evidence presented to
him. As mentioned above, the Court will strike Dr. Huang’s statement that Plaintiff was apprised
of DOT and add into the record that Plaintiff last attended work and school on February 17, 2015
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and late February, respectively. Taken together the evidence presented to Justice Adler consisted
of, among other things, the following:
1)
Plaintiff was initially hospitalized at Jacobi Hospital in December 25, 2014 at
which point a lung abnormality was detected, doctors sought to rule out the
presence of TB through testing, and before the testing was completed Plaintiff left
against medical advice. (ECF No. 143-6 at Hearing Tr. 23:23-24; 27:4-9).
2)
The WCDOH became aware that samples from Plaintiff taken during his
December 2014 hospitalization eventually tested positive for TB in or around
January 28, 2015. (ECF No. 143-6 at Hearing Tr. 55:6-56:6).
3)
Ms. Skelson spoke to Plaintiff over the phone on February 4, 2015, advised him
that he needed to immediately see a doctor and start treatment, and that he risked
exposing co-workers and family members to illness if he did not engage in those
steps. Plaintiff responded by advising her that he would consider coming in for
treatment and further evaluation. (ECF No. 143-6 at Hearing Tr. 58:13-59:11).
4)
Ms. Skelson spoke with Dr. Jenny—a doctor from Jacobi Hospital who was
communicating with Plaintiff—and was informed that Dr. Jenny never physically
saw Plaintiff but told him it was important for him to come in for an appointment,
gave Plaintiff an appointment for February 2, 2015, and that Plaintiff was unable
to show up to the appointment as a result of a snowstorm. (ECF No. 143-6 at
Heating Tr. 62:17-63:11).
5)
Between February 5, 2015 and February 13, 2015, WCDOH made at least 6
different attempts to contact Plaintiff and left several messages for him to contact
WCDOH for evaluation and treatment and/or to send the name of a doctor that he
would be contacting. (ECF No. 132-18 at MSEK 0065; ECF No. 143-6 at
Hearing Tr. 63:12-22).
6)
In light of difficulties communicating with Plaintiff, Ms. Skelson attempted to
communicate with Plaintiff’s uncle sometime after February 4. (ECF No. 143-6
at Hearing Tr. 59:17-60:8.)
7)
Ms. Skelson affirmed that Plaintiff told her, at some point, that Plaintiff “works in
New York City and travels there via public transportation.” (ECF No. 132-18 at
MSEK 0065). Separate from the hearing, Plaintiff confirmed during his
deposition that he travelled via public transportation into New York during
January 2015. (ECF No. 132-3 at Tr. 80:22-82:14). As discussed above, the
corrected affidavit will reflect that Plaintiff last attended school in late February
and last attended work on February 21, 2015.
8)
Dr. Huang testified that, on February 18, 2015, she sent a letter advising Plaintiff
“that his tests were all positive for tuberculosis and we directed him to come to
our TB clinic.” (ECF No. 143-6 at Hearing Tr. 27:10-12). Based on her review
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of Plaintiff’s file, Plaintiff never came to the TB clinic. (ECF No. 143-6 at
Hearing Tr. 27:21-22).
9)
Dr. Huang testified that, “in order to ensure that people are adequately and
completely treated, the standard of care is to observe every dose of every
medication that everyone takes for TB until they have completed treatment.”
(ECF No. 143-6 at Hearing Tr. 25:16-19.) In other words, she testified that DOT
is that standard of care.
10)
Dr. Huang testified that, Plaintiff’s uncle “was advised that he [i.e., Plaintiff]
needed to get . . . medical care and treatment. And he was given some options as
to who he could go see for treatment. And one of those people that he was given
a referral to . . . was Dr. Lederman.” Subsequently, “the uncle contacted Dr.
Lederman and informed him that [Plaintiff] would be coming to see him on
February 26 at 4:00 p.m. in our TB chest clinic in the health department clinics.”
But that instead, on February 26, 2015, Dr. Lederman received a call saying that
Plaintiff “was not going to be keeping his 4:00 o’clock appointment and that he
was going to see another doctor.” (ECF No. 143-6 at Hearing Tr. 30:14-31:4.)
11)
Dr. Huang further testified that “Dr. Lederman tried to contact both the [Plaintiff],
actually, as well as the uncle . . . to find out, you know, information about who
they were going to see, what the, you know, when the date of the appointment,
without success.” (ECF No. 143-6 at Hearing Tr. 31:5-10). Likewise, Dr. Huang
testified that, WCDOH would likely have been notified if Plaintiff had gone to
another doctor besides Dr. Lederman because, “you’d be hard pressed to find a
physician who doesn’t know that the health department needs to be notified [if
that physician was treating a patient with TB]” and that failure to inform the
WCDOH “would not be in compliance with New York State Public Health Law”
and that between February 26 and March 4, the WCDOH was not notified by any
physicians that Plaintiff had come in for treatment. (ECF No. 143-6 at Hearing
Tr. 31:18-32:19).
12)
Dr. Huang, who was accepted as an expert on infectious diseases by Justice Adler,
testified that, in her experience, Plaintiff poses a risk to himself and to others
because “untreated tuberculosis is a lethal disease” and “there is also the issue of
spreading the infection to other people that he’s in contact with.” (ECF No. 143-6
at Hearing Tr. 35:7-19).
13)
Dr. Huang further testified that WCDOH had been informed by physicians at
Sound Shore Hospital that “[t]he information was that [Plaintiff] was working up
through February 17[, 2015].” (ECF No. 143-6 at Hearing Tr. 35:21-25).
However, in light of the corrected analysis, this statement should be adjusted to
reflect that Plaintiff last attended work on February 21, 2015. (Pltf’s Counter
R.56 Statement at ¶ 76; ECF No. 143-7, Pltf Ex. 13 at COW 00570).
14)
Mr. John Castanda, community health worker, testified that: (1) on February 19,
2015, he provided Uncle with a x-ray referral and requested a sputum sample to
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be obtained from Plaintiff; and (2) subsequently, on February 23, 2015, he
received the sputum sample from the uncle and “the uncle advised me that he had
taken his nephew [i.e., Plaintiff] for an x-ray and he asked for medication. I told
him I did not have any medications for him, that he would need to present the
nephew to the clinic at some point so he can be evaluated and possibly given
medication and follow up with the doctors.” (ECF No. 143-6 at Hearing Tr.
51:10-15.)
15)
On February 22, 2015, “Plaintiff had a chest x-ray taken at Montefiore – New
Rochelle Hospital which x-ray was also determined to be abnormal and consistent
with pulmonary tuberculosis. [Plaintiff] left Montefiore – New Rochelle Hospital
prior to the completion of his medical evaluation.” (ECF No. 132-18 at MSEK
0009; MSEK 0016).
If presented with additional information that Plaintiff claims was omitted, the record would
also contain the following:
1)
Sometime in February, Plaintiff attempted to obtain an appointment with Dr. Patel
at Columbia Presbyterian and/or Dr. Wilson Quezada at Columbia Presbyterian,
but could not get an appointment for approximately six weeks.
2)
Plaintiff expressed his preference to receive anti-TB medication that he could
self-administer to certain employees of the WCDOH and physicians at the
Montefiore New Rochelle Hospital.
3)
Plaintiff obtained an appointment with Dr. James Cooke for March 4, 2015 (i.e.,
the same day as the hearing on WCDOH Defendants’ petition for involuntary
confinement).
4)
Plaintiff did not go to work after February 21, 2015 and last attended classes
sometime in late February 2015.
Even viewing the facts in the light most favorable to Plaintiff, Plaintiff’s undisputed
conduct established a sufficient basis to support a probable cause finding (and even a finding by
clear and convincing evidence) that Plaintiff was a source of danger to others. Plaintiff was not
responding to communications with the WCDOH. Objectively assessed, this breakdown in
communications was risky to the public insofar as it delayed the timely treatment of Plaintiff (and
thus delayed the ability of medical professionals to mitigate his infectiousness to others), disrupted
the ability of WCDOH to monitor Plaintiff’s condition, engage in contact tracing, and otherwise
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ascertain Plaintiff’s whereabouts (and thus interfered with the ability of public health professionals
to contain the spread of infectious disease). Similarly, Justice Adler was apprised by a medical
professional that DOT was the appropriate course of treatment to ensure the patient took every
dose of medication. Plaintiff’s failure to communicate with WCDOH and failure to submit to
DOT meant that the standard protocol for reducing potential externalities—i.e., eliminating
infectiousness in a verifiable manner—was not being put into place.
Plaintiff’s decision to cancel his appointment with Dr. Lederman further delayed efforts to
mitigate potential externalities arising from his continued infectiousness. His decision to cancel
that appointment did not occur in a vacuum. It occurred after Plaintiff: (1) was apprised of a lung
related abnormality in December 2014, (2) departed from a hospital attempting to diagnose his
lung abnormality against medical advice, (3) received a positive TB diagnosis; (4) received (or
ignored) communications including phone calls, text messages, and voice messages imploring him
to obtain medical treatment immediately; (5) departed from another hospital that sought to conduct
additional treatment; and (6) continued to work and attend school until February 21, 2015 and late
February 2015, respectively. In sum, as of March 4, 2015, Plaintiff was at the very least an
individual with an infectious and deadly disease that was not currently being treated (much less
treated through the use of DOT), who missed or rejected several opportunities for medical
interventions, and remained potentially infectious to others. These facts established probable
cause that Plaintiff was a source of danger to others for the purposes of PHL § 2120.
There are certainly countervailing facts. For example, Plaintiff provided sputum samples
to the WCDOH, complied with having an x-ray examination in February, took steps to identify a
pulmonologist, and stopped attending work and school as of late February. And, as mentioned
above, there is evidence suggesting that Plaintiff was not knowingly indifferent to the potential
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risk of spreading TB that might have resulted from his failure to be treated by DOT. Plaintiff’s
failure to obtain treatment or maintain an open line of communication with the WCDOH may have
been the result of misunderstandings, missed communications, and his distrust of WCDOH.
Accepting all of that as true, the (corrected) evidence presented still established that Plaintiff had
an infectious disease, would not or could not maintain communications with the WCDOH,
remained untreated (much less in a verifiable manner through DOT), and thus, as a matter of law,
there was a sufficient basis to establish probable cause that he was dangerous to others
notwithstanding the fact that there might be a more innocent explanation for his noncompliance.
See Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (“[T]he fact that an innocent explanation
may be consistent with the facts alleged . . . does not negate probable cause.” (quotation marks
omitted)); Vallen v. Connelly, No. 99 CIV. 9947 (SAS), 2004 WL 555698, at *8 (S.D.N.Y. Mar.
19, 2004), aff’d, 185 F. App’x 22 (2d Cir. 2006) (“[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.” (quoting Monday v. Oullette, 118 F.3d 1099, 1102 (6th
Cir. 1997))).
Separately, Plaintiff “fails to make a substantial preliminary showing that the omission of
[certain information] was ‘designed to mislead or was made in reckless disregard of whether it
would mislead.’” United States v. Calk, No. 19 CR. 366 (LGS), 2020 WL 3577903, at *6
(S.D.N.Y. July 1, 2020) (quoting United States v. Rajaratnam, 719 F.3d 139, 155 (2d Cir. 2013).
Plaintiff has not established that Defendants were aware of his appointment with Dr. Cooke or his
inquiries into arranging treatment with Dr. Patel and Dr. Quezada prior to the March 4, 2015
hearing. To the extent WCDOH Defendants were aware of his efforts to obtain medical treatment
they seemed to willingly provide that information to Justice Adler. For example, Dr. Huang
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testified that Plaintiff’s uncle told Dr. Lederman that Plaintiff was going to see another doctor.
Likewise, John Castanda testified to Justice Adler that he provided an x-ray referral to Plaintiff’s
uncle and that, subsequently, Plaintiff went to a hospital to get the x-ray examination and provided
sputum samples. Similarly, even though certain affidavits seem to misrepresent that Plaintiff was
actively attending school and work, testimony at the evidentiary hearing clarified that that the
WCDOH believed that Plaintiff stopped attending school on March 2, 2015 and that the WCDOH
instructed his employer and school to restrict his access to work and school. The WCDOH
Defendants did not leave Justice Adler with the impression that Plaintiff was permitted to continue
attending school and work. The WCDOH Defendants’ oral clarification of misstatements in
certain affidavit, belies the suggestion that they were attempting to mislead Justice Adler
notwithstanding evidence in the drafting history of the affidavits demonstrating that WCDOH
Defendants were uncertain that Plaintiff was actively attending school.
*
*
*
The Court finds that there were no material misstatements or omissions based on the
corrected affidavit analysis, and that the March 4, 2015 Order was supported by probable cause.
As discussed below, Plaintiff was seized 51 days after the issuance of this order, and his continued
confinement was subject to the issuance of a separate order by Justice Adler. Accordingly, the
Court must also address the validity of his seizure and continued confinement.
B.
Whether Probable Cause Dissipated Between March 4, 2015 and April 23, 2015
Plaintiff argues that, even if the March 4 Order was supported by probable cause, WCDOH
Defendants are nonetheless liable for violating the Fourth Amendment because, by the time
Plaintiff was arrested on April 23, 2015, “all of the important facts that led the court to issue its
order had materially changed in the intervening period.” (Pltf Opp. at 24.) Though not a model
of clarity, WCDOH Defendants counter that certain undisputed facts upon which the March 4
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Order was issued still existed and still established that Plaintiff was a danger to others even after
the passage of 51 days. (WCDOH Reply at 5.)
In support of his contention that probable cause can dissipate, Plaintiff cites cases holding
that a warrantless arrest may lack probable cause where evidence obtained prior to the warrantless
arrest vitiates probable cause. See Pltf Opp. at 24 (citing Nicholson v. City of Los Angeles, 935
F.3d 685 (9th Cir. 2019); Selvaggio v. Patterson, 93 F. Supp. 3d 54 (E.D.N.Y. 2015)). These cases
are distinguishable from the instant matter because, unlike those cases, Plaintiff’s seizure was
pursuant to a court order rather than a warrantless arrest.
Plaintiff does not cite any cases regarding the effect of dissipation of probable cause on the
legality of a search or seizure pursuant to a warrant. Based on this Court’s review, it is an issue of
first impression whether probable cause can dissipate during the time between the issuance and
execution of an order authorizing arrest pursuant to PHL § 2120. The Second Circuit has addressed
the related issue of whether probable cause can dissipate between the issuance and the execution
of a search warrant. In United States v. Marin-Buitrago, the Second Circuit observed that
“[c]ertain restrictions are placed on the execution of search warrants to ensure that probable cause,
as well as the veracity of the information in the affidavit, exists when the warrant is executed”—
e.g., the requirement that a search warrant be executed within ten days of its issuance pursuant to
Fed. R. Crim. P. 41(c)—and concluded that “[u]nreasonable delay in the execution of a warrant
that results in the lapse of probable cause will invalidate a warrant.” 734 F.2d 889, 894 (2d Cir.
1984). 2
2
Although Marin-Buitrago concerned a search warrant, the Second Circuit subsequently
stated, “We appear to have first discussed the effect of a dissipation of probable cause on the
legality of a search or seizure in . . . Marin-Buitrago [].” United States v. Pabon, 871 F.3d 164,
175 (2d Cir. 2017) (emphasis added).
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Generally, probable cause for arrest pursuant to a valid warrant does not dissipate with the
passage of time because probable cause for arrest concerns a conclusion as to a past event—e.g.,
the sale of narcotics by John Doe to an informant on March 29, 2012—which, if correct, will not
change. See Gordon Mehler, John Gleeson, David C. James, and Alicyn L. Cooley, Federal
Criminal Practice: A Second Circuit Handbook § 36-9 (20th ed. 2020) (“One difference between
probable cause to arrest and probable cause to search is that once a crime has been committed,
probable cause to arrest the perpetrator generally does not grow stale. Probable cause to search,
however, frequently can become stale, given, for example, that warrants generally authorize
searches for particular items that are not guaranteed to remain in the place to be searched.”).
Orders authorizing confinement pursuant to N.Y. Public Health Law § 2120 are based on the
assessment of a present condition – i.e., a finding that “the afflicted person is a source of danger
to others[].” The present condition of being dangerous or afflicted can lapse with time—e.g., if an
infectious person’s underlying condition is cured—or it may remain the same—e.g., if the person
remains infectious and unmonitored. In short, a determination of present tense dangerousness is
not amenable to a bright line rule presupposing the lasting validity or ephemeral quality of probable
cause. 3
Accordingly, if the Court had to reach the issue, it would hold that where, as here, the
complainant’s confinement was pursuant to a judicial order, probable cause can dissipate if the
3
PHL § 2120 does not set forth any time-based restriction on the execution of an order
authorizing confinement of an individual adjudged to be infectious and dangerous. Nor would
this Court seek to judicially invent a deadline for executing such an order akin to Fed. R. Crim.
P. 41(c). In any event, such a rule would be improvident as certain infectious disease carriers
may present a danger to the public for years and, under those circumstances, the lapse of time
would not dissipate probable cause or invalidate the order authorizing confinement. The
lodestone of probable cause at the time of seizure is a sufficient guide to public health officers
seeking to ascertain whether, weeks after the issuance of a warrant, they are still entitled to seize
an infectious disease carrier or whether an additional order is required.
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delay in execution of a warrant results in the lapse of probable cause so as to invalidate the judicial
order. Of course, the lapse of time alone is likely insufficient to invalidate an order authorizing
confinement pursuant to PHL § 2120. Instead, the lapse of time must be accompanied by “a
definite and material change . . . in the facts underlying the magistrate’s determination of probable
cause.” Marin-Buitrago, 734 F.2d at 894. The proper analytical approach is to determine whether
upon evaluating the subsequently obtained information “and the information in the affidavit [or
record before Justice Adler] . . . probable cause continues to exist.” Id.
Plaintiff argues that, between March 4, 2015 and April 23, 2015, Plaintiff’s affirmative
steps towards getting treatment vitiated the Court’s probable cause determination. In support of
this position, Plaintiff notes that he attended appointments with Dr. Cooke on March 4, 2015,
March 11, 2015, and March 25, 2015. (Pltf. Opp. at 10-11; Pltf R.56.1 Statement ¶¶101 & 111.)
He also claims that he filled a prescription for anti-TB medication obtained from Dr. Cooke on
March 4, 2015, and subsequently refilled that prescription on March 27, 2015. (Pltf Counter
R.56.1 Statement ¶¶ 106 & 134.) He was also directed to engage in self-isolation for a period of
three weeks by Dr. Cooke. (Pltf R.56.1 Statement ¶ 107.) The WCDOH concedes that: (1) it
learned on March 30, 2015, that Dr. Cooke was involved in treating Plaintiff (WCDOH R.56.1
Resp. ¶ 124); (2) it learned that Plaintiff had been seen by Dr. Cooke twice (WCDOH R.56.1 Resp.
¶ 125); and (3) it knew that Plaintiff had filled Dr. Cooke’s prescriptions (WCDOH R.56.1 Resp.
¶ 133). There is also no dispute that WCDOH learned by the week of March 16, 2015 that Plaintiff
had not been seen at the Labor Technical College since late February 2015. (WCDOH R.56.1
Resp. ¶ 109.) Viewed in the light most favorable to Plaintiff, there is at least sufficient evidence
upon which a jury could conclude that Plaintiff had obtained anti-TB medication, engaged in self-
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isolation, ceased attending work and school, and attended several appointments with medical
professionals including Dr. Cooke.
However, even viewing these facts in the light most positive to Plaintiff, the Court
concludes that none of the developments in his treatment were definite and material to the probable
cause determination of his dangerousness because Plaintiff’s continued noncompliance with DOT
and failures to communicate with the WCDOH still created unnecessary risks of spreading
infectious disease to others. As explained above, inter alia, Plaintiff’s rejection of medical
interventions, failure to engage in DOT, and failure to maintain communications with WCDOH
furnished the probable cause basis for Justice Adler to conclude that Plaintiff was a source of the
danger to the public in his March 4, 2015 Order authorizing Plaintiff’s involuntary hospitalization.
Many of these factors still persisted after March 4, 2015.
First, testing obtained by WCDOH after March 4, 2015 indicated that Plaintiff was still
TB-positive. (Plaintiff’s Response to the WCDOH Defendants’ Statement Pursuant to Local Civil
Rule 56.1 (“Pltf R.56.1 Resp.”) (ECF No. 144) ¶ 139.) Second, Plaintiff’s subsequent treatment
with Dr. Cooke did not involve DOT, and thus this basis to conclude he was dangerous was still
present. (See, e.g., Pltf R.56.1 Resp. ¶ 30; Pltf R. 56.1 Statement ¶ 105.) Third, it remains
undisputed that Plaintiff did not personally maintain communications with WCDOH and
accordingly this indicium of dangerousness remained present. Fourth, WCDOH did not obtain
evidence after March 4, 2015 contradicting Plaintiff’s historical rejection of medical interventions
between December 2014 and March 4, 2015. During that time, as discussed above, Plaintiff
rejected medical interventions on several occasions, which is probative of whether Plaintiff could
be trusted to manage his illness in concert with medical professionals going forward, and supported
a probable cause determination that Plaintiff was still dangerous to others.
25
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subsequently obtained information did not contradict bases upon which Plaintiff was deemed
dangerous and, accordingly, there was no definite and material change in facts underlying Justice
Adler’s order authorizing Plaintiff’s detention.
Even if Plaintiff’s self-administration of anti-TB medication, failure to communicate with
WCDOH, and historical rejection of medical interventions were insufficient independent bases to
conclude Plaintiff was dangerous, the newly obtained information identified by Plaintiff is clearly
distinguishable from the type of information that vitiated probable cause in cases cited by Plaintiff.
In those cases, subsequently obtained information tended to disprove a historical event upon which
probable cause was based. For example, in Nicholson, 935 F.3d 685, the Ninth Circuit found that
probable cause for an warrantless arrest had dissipated where, although the arresting officer
initially thought he “saw a person . . . pointing . . . a blue steel handgun at another person” it soon
became apparent that there was no basis for arrest because the suspects “had their school uniforms
and backpacks,” were “unarmed,” and as the officer approached the suspects one was “spraying
on cologne and [another] was donning his school uniform.” Id. at 691. In short, the subsequently
obtained information cast serious doubt on whether the suspects ever possessed a firearm.
Likewise, in People v. Quarles, 88 Ill.App. 3d 340 (1980), law enforcement initially
arrested a suspect for attempted burglary after receiving a telephone complaint. Subsequently, the
investigating detective learned from the owner of the apartment where the attempted burglary
allegedly took place that: (1) the telephone complainants were not residents of the apartment; (2)
the actual resident of the apartment had asked the owner if the suspect could reside in the
apartment; (3) the landlord had approved the suspect’s residence in the apartment; and (4) the
owner inspected the apartment and found no sign of forced entry. Id. at 341. In short, the
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subsequently obtained information cast serious doubt on whether the suspect ever attempted to
burglarize the apartment.
In the instant case, the subsequently obtained information regarding Plaintiff’s medical
treatment between March 4, 2015 and April 23, 2015 did not contradict the historical record of
Plaintiff’s rejection of medical interventions prior to March 4, 2015, and was not conclusive as to
his compliance with medical professionals after March 4, 2015. While it is undisputed that the
WCDOH was aware that Plaintiff attended several appointments with Dr. Cooke, obtained a
prescription for anti-tuberculosis medication, refilled the prescription, and was instructed to
engage in self-isolation, the WCDOH was not in receipt of information that proved Plaintiff’s
compliance with medical treatment—such as an account by Dr. Cooke that he, or another medical
professional, personally administered the medication on daily basis.
On the one hand, exculpating evidence certainly existed of which WCDOH was aware.
Contemporaneous records reflect that, as of April 2, 2015, WCDOH had been informed by Dr.
Cooke that Plaintiff’s uncle called to “complain that MC’s urine has turned orange and also of
some GI distress with TB medications”—both of which are potential side effects of anti-TB
medications—and Dr. Cooke expressed that he “believe[d] that [Plaintiff’s uncle and Plaintiff]
want to be treated/take meds.” (ECF No. 143-32 at COW_00624.) Dr. Jacquette reacted to this
information by stating that “progress is being made.” (ECF No. 143-32 at COW_00624.) The
WCDOH’s account of this conversation is consistent with Dr. Cooke’s contemporaneous notes
from March 25, 2015, which reflect his assessment that Plaintiff was “[u]nder treatment [and that
there was] no reason to believe [Plaintiff was] not taking medications.” (ECF No. 143-15 at
MC000947.) Additionally, a note from Dr. Cooke recounts that, on April 15, 2015, Dr. Cooke
saw Plaintiff’s uncle and received the message that Plaintiff “is taking his medications” is no
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longer experiencing “GI distress,” that he was told “no alcohol and no working,” and that Plaintiff
“is not with his girlfriend.” (ECF No. 143-40 at COW_0102.)
This account of Plaintiff’s treatment is also consistent with certain deposition testimony of
Dr. Cooke. For example, he stated that he had written in his notes that there was no evidence
Plaintiff is not taking his medications “because of my conversation with the uncle and [Plaintiff].
They were insistent that they were taking the medications, and [Plaintiff] volunteering that his
urine was orange.” (ECF No. 143-58 at Tr. 67:2-5.) Dr. Cooke also testified that it was his
assessment that “[Plaintiff] was still under treatment for active tuberculosis” and that “[t]he
medications seemed to be well tolerated at one month.” (ECF No. 143-58 at Tr. 67:22-68:3.) Dr.
Cooke also testified that he believed Plaintiff could comply with his medication regimen on an
outpatient basis. (ECF No. 143-58 at Tr. 130:3-5.)
However, unlike in Nicholson where law enforcement confirmed the suspects did not
possess a firearm, the information WCDOH had available to it as of April 23, 2015 was equivocal
about Plaintiff’s adherence to treatment and isolation. For one, the WCDOH was advised by law
enforcement in New Jersey that, at least for a certain period of time after the March 4 Order went
into effect, Plaintiff was residing with children in New Jersey and thus potentially exposing
children to tuberculosis. (ECF No. 143-53 at Tr. 243:24-244:23.) Likewise, emails memorializing
conversations between Dr. Huang and Dr. Cooke reflect that, as of April 2, 2015, Dr. Cooke had
advised Dr. Huang that he “does not believe that MC is taking meds all at once as recommended
due to GI distress.” (ECF No. 143-32 at COW_00624.) Likewise, in that same communication,
WCDOH was apprised that Plaintiff “requested that another MD than Dr. Cooke see MC about his
TB.” (ECF No. 143-32 at COW_00625.) As Plaintiff had previously cancelled appointments in
order to consult with a different doctor, this appeared to be consistent with his prior conduct
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considered by Justice Adler in granting the order authorizing Plaintiff’s detention. Later, records
from April 21, 2015 reflect that Dr. Huang had been advised by Dr. Cooke on April 14, 2015 that:
(1) “there was no way for [Dr. Cooke] to tell whether MC was taking his medications appropriately
or all at once, complying with isolation or consuming [alcohol]”; and (2) “he was not comfortable
continuing to care for MC if he did not return by 4/17/15 and said that if MC did not show up by
then, he felt that the best thing to do was for WDCH to proceed with the court-ordered detention.”
(ECF No. 143-1 at COW_01100.)
This account was largely consistent with the deposition testimony of Dr. Cooke who agreed
that, as of the middle of April 2015, he had “lost confidence in [his] ability to communicate with
[Plaintiff].” Dr. Cooke also agreed with the statement that he “had no independent way of telling
if the plaintiff was being honest about taking his medications other than what he said.” (ECF No.
132-7 at Tr. 121:21-122:2.) He also testified that he grew concerned about M.C.’s well-being as
a result of his failure to be able to reach him between March 26, 2015 and April 10, 2015. (ECF
No. 143-58 at Tr. 80:7-12.) His inability to communicate with Plaintiff prevented him from being
able to advise Plaintiff that “we may need more sputums or do more testing” and that “we had to
know whether or not he needed to be on more medication or not.” (ECF No. 143-58 at Tr. 71:1523.) It is also consistent with notes taken by Dr. Cooke on March 26, 2015 stating that, after he
received testing indicating that Plaintiff was “[s]putum smear positive for AFC PCR,” he
unsuccessfully “attempted to contact patient and the uncle” and accordingly he “will need to notify
the Westchester DOH to assure that [Plaintiff] is indeed taking his medication.” (ECF No. 14315 at MC000947.)
The account is also consistent with the deposition testimony of WCDOH officials. For
example, Dr. Huang testified that “I, myself, had direct conversations with Dr. Cooke. And he
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told me directly he had no idea whether or not [Plaintiff] was taking his medications or not. He
said he wrote a prescription for it, but that’s all he could say.” (ECF No. 143-53 at Tr. 258:23259:4.) Likewise, Dr. Jacquette testified that she heard from Dr. Huang that Dr. Cooke had
expressed doubts about whether Plaintiff was taking medication correctly. (ECF No. 143-55 at
Tr. 103:8-21.)
Plaintiff attempts to cast doubt upon any reservations that WCDOH may have had with
respect to the effectiveness of Plaintiff’s outpatient treatment by pointing to evidence generated
after he was arrested on April 23, 2015. For example, he cites to a timeline generated by Plaintiff’s
uncle stating that Plaintiff took all medications as directed. (See ECF No. 143-41.) Likewise,
Plaintiff points to a letter from Dr. Cooke, written in September 2015 stating that “it is my opinion
that [Plaintiff] was taking his anti-tuberculosis medication from the time I had originally prescribed
it.” (ECF No. 143-38 at MC000523.) But, even crediting this evidence, there is no basis for this
Court to conclude that this information was known to WCDOH at the time of Plaintiff’s arrest,
and an evaluation of probable cause is limited to “the facts known by the arresting officer at the
time of the arrest[.]” Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013); see also
Warren v. Dyer, 906 F.2d 70, 73 (2d Cir. 1990) (probable cause “encompasses only that
information available to the arresting official prior to and including the point of seizure”).
Viewing the facts in the light most favorable to Plaintiff, a reasonable jury could find ex
post that Plaintiff was in fact taking the medications he was prescribed, following Dr. Cooke’s
guidance to engage in isolation, and avoiding alcohol use. But, viewing the facts in the light most
favorable to Plaintiff, the totality of information available to WCDOH as of April 23, 2015 did not
vitiate the existence of probable cause. By contrast to the Nicholson and Quarles, there was no
definite and material evidence known to WCDOH that cast serious doubt on whether Plaintiff
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remained dangerous to the public.
In Nicholson, the basis for probable cause—i.e., law
enforcement witnessing possession of a gun—was directly controverted when law enforcement
discovered that the suspects were unarmed. Likewise, in Quarles, the basis for probable cause—
i.e., a telephone complaint that suspect had attempted a burglary at a particular address—was
directly controverted when law enforcement was informed by the owner of the apartment that the
suspect was in fact a resident of the apartment he was alleged to have attempted to burglarize and
there was no signs of a break in. Here, the communications from Dr. Cooke to WCDOH at the
time of Plaintiff’s arrest were, at best, ambivalent as to whether Plaintiff was adhering to the
prescribed treatment plan.
At bottom, even in the light of the newly discovered information, the basis for probable
cause persisted, and any reading of the inconsistent newly obtained information to invalidate the
warrant would be hypertechnical and contrary to the Supreme Court’s guidance that “the resolution
of doubtful or marginal cases in this area should be largely determined by the preference to be
accorded to warrants.” United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746, 13 L.
Ed. 2d 684 (1965). Accordingly, the Court holds that the information available to the WCDOH
between March 4, 2015 and April 23, 2015 did not vitiate probable cause or invalidate the order
authorizing Plaintiff’s detention.
*
*
*
The Court finds that probable cause supporting the March 4, 2015 Order had not dissipated
by April 23, 2015. Accordingly, the Court must also address the validity of Plaintiff’s continued
confinement after the March 4, 2015 Order expired on May 23, 2015.
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C.
Whether Plaintiff’s Continued Detention After May 23, 2015 Was Procured
Through False Representations to Justice Adler
Plaintiff argues that, irrespective of whether Plaintiff’s initial confinement was privileged
and supported by probable cause, as this Court has held, there is still a freestanding basis for Fourth
Amendment liability because the WCDOH Defendants fabricated evidence in their application to
extend Plaintiff’s confinement past May 23, 2015. (Pltf. Opp. At 26.) Plaintiff’s cites several
cases for this position which the Court examines below.
In Garnett v. Undercover Officer C0039, the Second Circuit held that a Section 1983
plaintiff may sue for denial of the right to a fair trial based on a police officer’s fabrication of
information, including when the information fabricated is the officer’s own account of his or her
observations of alleged criminal activity, which he or she then conveys to a prosecutor. 838 F.3d
265, 274 (2d Cir. 2016). This stems from its previous holding “that a privileged arrest is
insufficient to negate the fifth element of a fair trial claim when an officer falsifies information
‘likely to influence a jury’s decision and forwards that information to prosecutors.’” Id. at 277
(citing Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997)). Accordingly, Garnett
is not concerned with the existence of probable cause, nor the contours of a Section 1983 unlawful
seizure claim, and instead goes to whether false representations can sustain a Section 1983 fair
trial claim.
Russo v. City of Bridgeport, 479 F.3d 196 (2d Cir. 2007) is more relevant to a Fourth
Amendment violation as it articulates the standards for asserting a Section 1983 claim for
unreasonably prolonged detention in violation of the Fourth Amendment. An accused may recover
for an unlawfully sustained detention if he establishes that “(i) he was wrongfully incarcerated for
an unreasonable length of time; (ii) the defendant-officer, by expending reasonable cost and effort,
could have conclusively established the plaintiff’s innocence; (iii) the defendant-officer failed to
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do so; and (iv) the defendant-officer acted with a culpable mental state—i.e., with intent to
unlawfully detain the plaintiff or deliberate indifference to his constitutional rights.” Thompson v.
City of New York, 603 F. Supp. 2d 650, 656 (S.D.N.Y. 2009). Russo indicated that the touchstone
is whether the defendants’ actions were objectively reasonable under the circumstances, including,
inter alia, (1) the length of time of [the] wrongful incarceration, (2) the ease with which the
evidence exculpating [the plaintiff] . . . could have been checked, and (3) the alleged intentionality
of [the defendants’] behavior.” Id.
As a preliminary matter, Russo v. City of Bridgeport, is of dubious applicability to the
instant case because there is no allegation here that the WCDOH Defendants failed to investigate
potential sources of exculpatory evidence. Plaintiff appears to contend that Russo applies, or can
be extended to apply, to claims for prolonged incarceration where, even though no exculpatory
evidence was left uninvestigated, the detention was extended through, in part, the falsification of
evidence submitted to a court. District courts have been reluctant to extend Russo beyond the
factual scenario presented in that case. See, e.g., Jackson v. City of New York, 29 F. Supp. 3d 161,
179 (E.D.N.Y. 2014) (“Russo has been narrowly construed to involve situations where a law
enforcement official has mishandled or suppressed readily available exculpatory evidence, which
resulted in the plaintiff’s unreasonably long incarceration.”).
Instead, ordinarily, a Fourth Amendment claim regarding the falsification of evidence
within an affidavit supporting an arrest warrant would be assessed through the corrected affidavit
analysis that the Court employed above. The corrected affidavit test cannot be applied here
because, as discussed in more detail below, Justice Adler did not evaluate the order to show cause
application or issue an order extending Plaintiff’s confinement based upon the evidence presented
therein. Instead, Plaintiff and WCDOH Defendants entered into an agreement to adjourn the order
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to show cause hearing and Plaintiff consented to his continued confinement until that hearing.
Thus, this Court is not faced with a judicial determination of probable cause and cannot assess
whether that judicial determination would have been different had allegedly false information been
excluded.
Even assuming Russo applies to cases that do not involve the failure to investigate
exculpatory evidence, that claim would fail because WCDOH Defendants’ order to show cause
application and supporting affidavits were not the proximate cause of his confinement. Lundt v.
City of New York, No. 12 CIV. 1737 DLC, 2013 WL 5298458, at *4 (S.D.N.Y. Sept. 20, 2013)
(“To be actionable, any violation of constitutional rights must proximately cause the Section 1983
injury.”). Though not a model of clarity, Justice Adler’s March 4 Order appears to envision that
Plaintiff’s involuntary hospitalization was only initially authorized for 30 days after his seizure,
i.e., through May 23, 2015. (See ECF 132-19 at 0042 (“ORDERED, that in the event of further
proceedings within 30 days of his isolation, Respondent is not required to appear in person on the
return date but may appear by videoconferencing and/or telephone conferencing and/or appear by
legal counsel”)). Given this time-limited detention, Plaintiff argues that his continued detention
would have lacked judicial authorization after May 23, 2015, and should have ceased, absent
Defendants Amler and Huang submitting falsified information in WCDOH’s order to show cause
application and supporting affidavits seeking Plaintiff’s continued confinement for an additional
60 days. (Pltf Opp. at 26.) This argument would be more persuasive if Justice Adler had ordered
Plaintiff’s continued confinement based upon the order to show cause and supporting affidavits
submitted by the Defendants. He did not.
Instead, Plaintiff’s continued confinement was authorized by Justice Adler based upon an
agreement between Plaintiff’s counsel and WCDOH’s legal counsel. Justice Adler’s Decision and
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Order dated June 22, 2015 states “[t]he parties by and through their legal representatives . . . agreed
and the Court so ordered that a hearing on the Order to Show Cause would be held on June 2, 2015
and pending that hearing, it was agreed by the parties and so ordered by the Court that the March
3, 2014 Order would be extended up to and including June 2, 2015 and [Plaintiff’s] isolation at
the Westchester Medical Center would continue until the Court renders a Decision after the
completion of the June 2, 2015 hearing.”
added).)
(ECF No. 142-25 at COW_01498 (emphasis
The June 22 Decision and Order also states that “The parties by and through
their legal representatives further agreed and the Court so ordered an adjournment of the June
2, 2015 hearing to June 18, 2015, and the parties agreed and the Court so ordered that the
March 4, 2015 Order would be extended and [Plaintiff’s] isolation at the Westchester
Medical Center would continue until the Court renders a Decision after the completion of
the June 18, 2015 hearing.” (ECF No. 143-25 at COW_01498 (emphasis added).) Further,
during his deposition, Plaintiff agreed with the statement that he “consented to [his] continued
confinement at Westchester Medical Center between May 19, 2015, and June 18th, 2015.” (ECF
No. 143-52 at Tr. 183:6–24.)
Plaintiff does not reasonably dispute that he consented to his continued confinement at
WMC until June 18, 2015.
He argues instead that “Plaintiff’s attorney consented to an
adjournment of the proceedings in order to gather evidence and witnesses to present to the Court
to assure M.C.’s release” and that “Plaintiff at no time agreed that his admission to WMC was
necessary or appropriate.” (Pltf Resp. to WMC R.56.1 Statement at ¶ 14.) But Plaintiff’s
reservation of rights to dispute the medical necessity of his initial admission is not relevant to
whether his continued confinement was proximately caused by the submission of allegedly
misleading affidavits in support of an application for his continued confinement. The parties’
agreement to continue Plaintiff’s confinement is a superseding cause of Plaintiff’s confinement,
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and accordingly Plaintiff cannot sustain a Section 1983 claim for unreasonably prolonged
detention based upon the WCDOH Defendants’ application to extend his detention.
Accordingly, the Court finds that Plaintiff’s continued confinement after the expiration of
the March 4, 2015 Order was not caused by WCDOH’s submission of any information because:
(1) the superseding cause of Plaintiff’s detention was his consent to continued confinement and
(2) the falsification of information submitted in an affidavit that was not considered by a court
does not give rise to a Russo claim for prolonged detention.
*
*
*
The Court holds that Plaintiff’s confinement was supported by probable cause because: (1)
the March 4, 2015 Order authorizing Plaintiff’s detention was still supported by probable cause
after misleading affidavit statements were corrected and supplemented with additional
information, (2) probable cause did not dissipate prior to Plaintiff’s initial arrest on April 23, 2015,
and (3) Plaintiff’s continued confinement after May 18, 2015 was upon Plaintiff’s consent and
therefore any misconduct by WCDOH Defendants in their order to show cause submission was
not the proximate cause of his confinement. Accordingly, WCDOH Defendants’ motion for
summary judgment on Plaintiff’s Section 1983 Fourth Amendment claim is granted.
II.
Substantive Due Process Claim
To show a violation of substantive due process, a plaintiff must show that (a) he or she has
a valid liberty or property interest, and (b) the defendant infringed on the liberty interest in an
arbitrary or irrational manner. Harlen Assocs. v. Vill. of Mineola, 273 F.3d 494, 503 (2d Cir.
2001). Notably, substantive due process does not protect against every perceived infringement of
valid liberty or property interests (even those that are incorrect or ill-advised), but rather only
against those that are “arbitrary, conscience-shocking, or oppressive in a constitutional sense.”
Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995).
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A “[s]ubstantive ‘due process’ analysis must begin with a careful description of the asserted
right, for ‘[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever
we are asked to break new ground in this field.’” Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct.
1439, 123 L.Ed.2d 1 (1993) (quoting Collins v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct.
1061, 117 L.Ed.2d 261 (1992)). Courts have recognized that “[a]s 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).
The parties do not dispute the existence of Plaintiff’s liberty interest—i.e., to be free from
involuntary hospitalization absent a showing that he is dangerous. Instead, WCDOH Defendants
contend that Plaintiff’s detention was not arbitrary and capricious because it was pursuant to a
particularized assessment that Plaintiff was dangerous to others employing accepted medical
standards and the use of detention was the least restrictive means available. (WCDOH Moving
Br. at 15-18.) In opposition, Plaintiff relies upon the report of his expert Dr. George DiFerdinando
(the “DiFerdinando Report”) (ECF No. 143-45) to argue that Plaintiff’s confinement was against
established medical standards and was not the least restrictive means available to protect public
health and safety. (Pltf Opp. at 27-30.)
As a threshold matter, WMC Defendants argue that DiFerdinando Report—which Plaintiff
contends sets forth a dispute of material facts as to the established medical standards—is
inadmissible because it is unverified and without a supporting affidavit. (WMC Reply at 2.) This
argument is not supported by Rule 56 of the Federal Rules of Civil Procedure after the 2010
amendment.
Prior to its amendment in 2010, Rule 56 required that a sworn or
certified copy of any document referred to in an affidavit be attached
to the affidavit. Indeed, it was recognized that an exhibit could be
used on a summary-judgment motion only if it were properly made
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part of an affidavit. Conversely, affidavits that purported to describe
a document’s substance or interpret its contents were insufficient.
Further, to be admissible, documents had to be authenticated by and
attached to an affidavit that met the requirements of Rule 56 and the
affiant had to be a person through whom the exhibits could be
admitted into evidence. However, when the rule was amended in
2010, the rulemakers omitted these specific requirements, and
simply added to the list of appropriate materials ‘documents.’
10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 2722 (4th ed.).
Accordingly, as there is no reasonable dispute as to whether Plaintiff’s expert report is properly
before this Court, we analyze whether the DiFerdinando Report gives rise to disputed material
facts.
A.
Plaintiff’s Expert Report Does Not Raise a Dispute as to Generally Accepted
Medical Standards for Involuntarily Committing (or Continuing to Commit) a
Patient Suffering from Tuberculosis
In determining whether an involuntary commitment comports with due process, the
plaintiff bears the burden of producing evidence, generally in the form of expert testimony,
regarding the “applicable medical standards and the defendant’s alleged failure to meet those
standards.” Kraft v. City of New York, 696 F. Supp. 2d 403, 413 (S.D.N.Y. 2010) (quoting Fisk v.
Letterman, 501 F. Supp. 2d 505, 522 (S.D.N.Y. 2007). Expert testimony is required because such
determinations are generally outside a layperson’s realm of knowledge and “turn [ ] on the meaning
of facts which [typically] must be interpreted by expert [medical professionals].” Fisk, 501 F.
Supp. 2d at 522 (quoting Olivier v. Robert L. Yeager Mental Health Center, 398 F.3d 183, 190–
91 (2d Cir. 2005)).
The DiFerdinando Report does not raise a genuine issue of material fact as to whether
Defendants failed to meet applicable medical standards with respect to the involuntary
confinement of Plaintiff because Dr. DiFerdinando fails to identify any standard generally
accepted in the medical community. A review of the entire report and each of the conclusions of
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Dr. DiFerdinando quoted by Plaintiff as relevant to this inquiry reveals that Dr. DiFerdinando
never purports to define any generally accepted standard and that each of his conclusions were
made without reference to an operative accepted medical standard.
For example, Dr. DiFerdinando opines that “the accrued positive behaviors of MC—
seeking care, starting his regimen, adhering to care, providing sputum—should have been taken
into account when assessing his overall state of care.” (ECF No. 143-45 at 6.) But, Dr.
DiFerdinando did not set forth what constitutes the applicable medical standard for evaluating
whether a patient is a source of danger to others – e.g., whether it is generally accepted in the
medical community to, pre-hospitalization, evaluate a certain set of patient characteristics and how
to evaluate those characteristics. Accordingly, DiFerdinando’s statement regarding the need to
interpret Plaintiff’s “accrued positive behaviors” is either: (i) agnostic as to whether WCDOH
Defendants breached accepted medical standards—i.e., Dr. DiFerdinando merely opines that in
his personal judgment (separate from accepted medical standards) Plaintiff’s accrued positive
behavior should have been consulted—or, (ii) lacking a proper foundation to support a conclusion
that WCDOH Defendants breached accepted medical standards.
Similarly, Dr. DiFerdinando concludes that “the decision to proceed with hospitalization
on April 23 was an overreaction and not appropriate.” (ECF No. 143-45 at 7.) Dr. DiFerdinando
concludes that the commitment decision was an overreaction because the available clinical
information indicated that Plaintiff adhered to Dr. Cooke’s treatment. (See ECF No. 143-45 at 68.) But, Dr. DiFerdinando never sets forth what constitutes the generally accepted medical
standard for the involuntary commitment of a person suffering from TB. Accordingly, his
conclusion that the decision to proceed with hospitalization was not appropriate “cannot be read
to express any more than simply his personal disagreement with the [Defendants’] treatment
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decisions.” Algarin v. New York City Dep’t of Correction, 460 F. Supp. 2d 469, 477 (S.D.N.Y.
2006), aff’d, 267 F. App’x 24 (2d Cir. 2008).
Likewise, Dr. DiFerdinando opines that “[g]iven the lack of any positive cultures, MC’s
adherence to an inpatient regime of DOT, his repeated negative smears, his clinical improvement,
and his overall acceptance of his diagnosis and need for treatment, I believe he could and should
have been discharged far soon (though, as stated previously, I do not think hospitalization was
necessary at all).” (ECF No. 143-45 at 9.) But, at the risk of being repetitive, Dr. DiFerdinando
never states what constitutes generally accepted medical standards with respect to the continued
involuntary confinement of a patient. It would be a different story if Dr. DiFerdinando set forth
his opinion that the generally accepted medical standard is to discharge a patient if they
demonstrate particular signs of clinical improvement, adherence to a treatment plan, and testing
reveals diminished or no signs of infectious disease present in the patient. The absence of such a
benchmark is dispositive here.
The Court notes that it has serious reservations as to whether the analytical framework
established in Rodriguez—which appears to have informed the manner in which the parties
approached discovery and dispositive motion practice in this case—is appropriately applied in the
context of involuntary commitments pursuant to PHL § 2120. The actions of public health officials
in seeking a court ordered involuntary hospitalization pursuant to PHL § 2120 are clearly
distinguishable from the actions of physicians instituting an involuntary hospitalization pursuant
to New York’s Mental Hygiene Law in certain ways that seem central to the framework set forth
in Rodriguez. For example, the holding of Rodriguez—i.e., that a physician’s determination of a
patient’s dangerousness can violate substantive due process—is tied to a statutory regime where
detention is authorized by a physician:
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Implicit in § 9.39’s requirement that the decision be made by a
physician is the premise that the decision will be made in
accordance with the standards of the medical profession. Though
committing physicians are not expected to be omniscient, the
statute implicitly requires that their judgment—affecting
whether an individual is to be summarily deprived of her liberty—
be exercised on the basis of substantive and procedural criteria
that are not substantially below the standards generally
accepted in the medical community.
72 F.3d 1051, 1063 (2d Cir. 1995) (emphasis added).
By contrast, PHL § 2120—i.e., the statutory regime authorizing Plaintiff’s involuntary civil
confinement—does not outsource the authority to detain individuals to physicians nor does it
implicitly rely upon the physician’s exercise of sound clinical judgment. Instead, the express text
of PHL § 2120 only permits an involuntary hospitalization upon a finding by a court “after due
notice and a hearing . . . that the afflicted person is a source of danger to others.” The WCDOH
Defendants’ statutory role in Plaintiff’s confinement was to present evidence to a court enabling
that court to determine whether the individual was sufficiently dangerous as to warrant involuntary
hospitalization.
After Rodriguez, decisions in this Circuit suggest that a substantive due process claim
based upon involuntary commitment “should be limited to the hospital setting—thus preventing
substantive due process claims against law enforcement officers who bring a person into a
hospital.” Matthews v. City of New York, No. 15-CV-2311 (ALC), 2016 WL 5793414, at *6
(S.D.N.Y. Sept. 30, 2016). Likewise, the Second Circuit has recently expressed skepticism with
the notion that the civil commitment line of cases—e.g., Rodriguez—apply in the infectious
disease context. Liberian Cmty. Ass’n of Connecticut v. Lamont, 970 F.3d 174, 188 (2d Cir. 2020)
(noting that “only one decision [] has applied the civil commitment line of cases in the infectious
disease context.”).
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In any event, as discussed later in this Opinion, the apparent lack of certainty in decisional
law with respect to how to analyze a deprivation of liberty occasioned by government measures to
control the spread of infectious disease is certainly relevant to the WCDOH Defendants’ assertion
of qualified immunity.
B.
There is a dispute as to whether WCDOH Defendants employed the least
restrictive means possible.
Plaintiff separately argues that summary judgment cannot be granted because there is a
factual dispute as to whether Defendants employed the least restrictive means possible by seeking,
or continuing, to confine him rather than employing less intrusive means of treatment or
containment, e.g., court-ordered DOT. (Pltf Opp. at 29-30.) Defendants respond that there was
no less restrictive means of advancing government’s interest in preventing the spread of
tuberculosis because “Plaintiff was non-compliant with his medical treatment, remained in the
community at large, and resided with other people, including three children, one of whom was
ultimately infected with TB.” (WCDOH Reply at 8.)
The Supreme Court has established that even where the government has a legitimate
purpose “that purpose cannot be pursued by means that broadly stifle fundamental personal
liberties when the end can be more narrowly achieved.” Shelton v. Tucker, 364 U.S. 479, 488, 81
S. Ct. 247, 252, 5 L. Ed. 2d 231 (1960). Although Shelton formally established the less restrictive
means analysis as a consideration in substantive due process cases, the Court has not subsequently
had occasion to apply the test in the context of civil confinement cases. Other courts have viewed
the less restrictive means analysis to be applicable in the context of confinement cases. See, e.g.,
Lynch v. Baxley, 744 F.2d 1452, 1459 (11th Cir. 1984) (collecting cases). In any event, Defendants
do not dispute the applicability of the less restrictive means analysis.
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Relative to involuntary confinement, “less restrictive alternatives exist for TB control,
including ‘free treatment at neighborhood chest clinics, voluntary hospitalization, voluntary
[directly observed therapy programs], and finally compulsory [directly observed therapy
programs], the latter being the most coercive form of intervention short of detention.’” Best v. St.
Vincents Hosp., No. 03 CV.0365, 2003 WL 21518829, at *8 (S.D.N.Y. July 2, 2003), adopted by
2003 WL 21767656, aff’d in relevant part sub nom. Best v. Bellevue Hosp., 115 F. App’x 459 (2d
Cir. 2004). The Second Circuit has previously stated, albeit in a non-precedential decision, that,
with respect to the involuntary commitment of a TB patient authorized pursuant to New York
City’s analogous public health laws, allegations that the TB patient “did not refuse to take
medication when he was initially detained,” was not homeless, and did not plan “to leave New
York immediately upon release” were sufficient to set forth a facially valid claim for violations of
his substantive due process rights. Best v. Bellevue Hosp. New York, NY, 115 F. App’x 459, 461
(2d Cir. 2004).
As discussed in great detail elsewhere in this Opinion, the March 4 Order authorizing the
involuntary commitment of Plaintiff was supported by probable cause based upon the information
available to WCDOH Defendants which established the presence of certain indicia of
dangerousness. Courts have previously held that the existence of probable cause to initiate an
arrest is fatal to a claim that substantive due process was violated by that arrest. See, e.g., United
States v. McDermott, 918 F.2d 319, 325 (2d Cir. 1990) (“Due process requires probable cause for
an arrest, and when police officers acting in bad faith make an arrest without probable cause, the
person arrested has suffered a deprivation of liberty without due process of law.”); Puller v. Baca,
781 F.3d 1190, 1197 (10th Cir. 2015); Anderson v. Larson, 327 F.3d 762, 769–70 (8th Cir. 2003;
McIntosh v. City of New York, No. 14CV00051FBST, 2017 WL 473840, at *5 (E.D.N.Y. Feb. 3,
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2017), aff’d, 722 F. App’x 42 (2d Cir. 2018) (citing Jimenez v. City of New York, No. 14-cv-2994
(SAS), 2015 WL 5638041, at *7 (S.D.N.Y. Sept. 24, 2015)); Pierre v. City of New York, No.
05CV5018(JFB)(KAM), 2007 WL 2403573, at *13 (E.D.N.Y. Aug. 17, 2007) (“as the Court finds
that Officer Hachadoorian and Sgt. White had probable cause to arrest plaintiffs, summary
judgment as to plaintiffs’ due process claims is granted.”); Clark v. Dowty, 05–CV 1345, 2007
U.S. Dist. LEXIS 49184, at *18, 2007 WL 2022045 (D. Conn. July 9, 2007) (“Because the Court
has already found that probable cause existed for the arrest of plaintiff, there was no violation of
his substantive or procedural due process rights regarding this claim.”); Little v. City of New York,
487 F. Supp. 2d 426, 442–43 (S.D.N.Y. 2007) (“[N]o reasonable juror could conclude that
[defendant] deprived plaintiff of his liberty without due process because . . . [defendant] had
probable cause for the arrest.”). Given the existence of probable cause supporting Plaintiff’s arrest,
Plaintiff cannot reasonably dispute whether his initial commitment was the least restrictive means
possible or, stated differently, the least restrictive means test is insufficient to establish a
substantive due process violation in connection with an arrest supported by probable cause.
Notwithstanding that holding, the fact that Plaintiff’s initial involuntary hospitalization was
supported by probable cause does not end the inquiry as to whether the length of time Plaintiff was
involuntary hospitalized reflected the least restrictive means possible. There are undisputed facts
upon which a reasonable jury could clearly find that Plaintiff was compliant with his treatment
both during the period in which he was treated by Dr. Cooke prior to his detention, and during his
confinement at WMC. Among other things, there is no reasonable dispute that Plaintiff was
compliant with taking his anti-TB medications for extended periods of time during his
confinement.
See e.g., Pltf. Counter R.56.1 Statement ¶ 167 n.1 (citing ECF No. 143-12
(containing notes maintained by WMC confirming Plaintiff’s compliance with his medication
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regimen).) Plaintiff raises triable issues pursuant to Best v. Bellevue Hosp. New York as to whether
Plaintiff’s continued confinement, after he had complied with ingesting anti-TB medication,
violated Plaintiff’s substantive due process rights.
Accordingly, this Court would be inclined to deny WCDOH Defendants’ motion for
summary judgment on Plaintiff’s Section 1983 substantive due process claim if Plaintiff asserted
a clearly established right. However, as discussed further below, the Court holds that WCDOH
Defendants are entitled to qualified immunity with respect to Plaintiff’s substantive due process
claim based on the Second Circuit’s recent holding in Liberian Cmty. Ass’n of Connecticut v.
Lamont, 970 F.3d 174 (2d Cir. 2020).
III.
First Amendment Retaliation Claim
“To defeat summary judgment on his First Amendment retaliation claim,” a plaintiff is
“required to provide evidence that (1) his speech was constitutionally protected, (2) [an official]
took an adverse action against him, and (3) there was a causal relationship between the protected
speech and the adverse action.” Williams v. Temple, 349 F. App’x 594, 596 (2d Cir. 2009) (citing
Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003)). There is no dispute that Plaintiff’s speech—
i.e., commencing a lawsuit against public officials—is constitutionally protected or that the
initiation of an application to extend Plaintiff’s confinement could constitute an adverse action
against Plaintiff. Instead, WCDOH Defendants seek summary judgment on Plaintiff’s First
Amendment retaliation claim on the basis that Plaintiff has purportedly failed to produce any
competent evidence beyond conclusory statements in support of the position that there is a causal
connection between Plaintiff’s protected speech and WCDOH Defendants’ adverse action towards
Plaintiff. Plaintiff argues that his retaliation claim survives a motion for summary judgment
because he has established circumstantial and direct evidence that WCDOH Defendants sought to
extend his confinement as a result of his filing of a notice of claim against them. The Court agrees.
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“A plaintiff can establish a causal connection that suggests retaliation by showing that
protected activity was close in time to the adverse action,” Espinal v. Goord, 558 F.3d 119, 129
(2d Cir. 2009) (citation omitted), and generally, “[t]emporal proximity is strong circumstantial
evidence of improper intent,” Anderson v. State of New York, Office of Court Admin., 614 F. Supp.
2d 404, 430 (S.D.N.Y. 2009). The Second Circuit has “not drawn a bright line to define the outer
limits beyond which a temporal relationship is too attenuated to establish a causal relationship
between the exercise of a federal constitutional right and an allegedly retaliatory action.” Id.
“[D]irect evidence of retaliation may consist of ‘conduct or statements by persons involved in the
decisionmaking process that may be viewed as directly reflecting the alleged retaliatory attitude.’”
McAvey v. Orange–Ulster BOCES, 805 F. Supp. 2d 30, 40 (S.D.N.Y. 2011) (quoting Lightfoot v.
Union Carbide Corp., 110 F.3d 898, 913 (2d Cir. 1997) (brackets omitted)).
Plaintiff argues that discovery has produced circumstantial evidence that Plaintiff’s
continued confinement was a result of his filing of a notice of claim. He emphasizes the temporal
proximity between Plaintiff’s filing of the notice of claim—which WCDOH Defendants learned
on April 24, 2015—and WCDOH Defendants’ application to Justice Adler seeking to extend his
confinement on May 18, 2015. (Pltf Opp. at 31.) Plaintiff also point to direct evidence of
retaliation including that, in advance of the hearing on WCDOH Defendants’ application to extend
Plaintiff’s confinement on June 18, 2015, the WCDOH, through counsel, stated that it was “willing
to allow” Plaintiff to leave WMC if, among other things, he provided “an executed release” of his
civil claims. (Pltf. Opp. at 33.)
If the temporal connection between the filing of his notice of claim and WCDOH
Defendants’ pursuit of an order extending his confinement “represented the sum total of
[Plaintiff’s] proof, we might be inclined to . . . grant [] summary judgment based on the weakness
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of [Plaintiff’s] case.” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). However, there is also
evidence that WCDOH Defendants expressly conditioned their willingness to discharge Plaintiff
upon his release of claims against them during discussions that occurred while he was still
detained. Considering both the direct and circumstantial evidence, the Court concludes that there
is a triable dispute as to whether WCDOH Defendants’ continued confinement of Plaintiff was
caused by Plaintiff’s filing of a notice of claim.
Accordingly, WCDOH Defendants’ motion for summary judgment on Plaintiff’s First
Amendment retaliation claim is denied.
IV.
Qualified Immunity
WCDOH Defendants contend that they are entitled to qualified immunity as to each of
Plaintiff’s federal claims. “Qualified immunity shields federal and state officials from money
damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged
conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 2080, 179 L. Ed. 2d 1149
(2011); see also Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)
(“Government officials performing discretionary functions, generally are shielded from liability
for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.”). “If the law was clearly
established, the immunity defense ordinarily should fail, since a reasonably competent public
official should know the law governing his conduct.” Harlow, 457 U.S. at 818–19.
A defendant enjoys qualified immunity if he can show that “either (a) [his] action did not
violate clearly established law, or (b) it was objectively reasonable for [him] to believe that his
action did not violate such law.” Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250
(2d Cir. 2001) (internal quotation marks and citations omitted). “A right is ‘clearly established’
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when ‘[t]he contours of the right [are] sufficiently clear that a reasonable official would understand
that what he is doing violates that right.’” Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013);
accord Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The
Court must consider “(1) whether the right in question was defined with ‘reasonable specificity’;
(2) whether the decisional law of the Supreme Court and the applicable circuit court support[s] the
existence of the right in question; and (3) whether under preexisting law a reasonable official
would have understood that his or her acts were unlawful.” Burns v. Citarella, 443 F. Supp. 2d
464, 470 (S.D.N.Y. 2006) (citing Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991)).
A.
Whether Rights Were Clearly Established at Time of Challenged Conduct
Exercising its discretion, the Court first addresses the existence of clearly established rights
underlying Plaintiff’s claims. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d
565 (2009).
After the motions for summary judgment were fully briefed, in Liberian Community
Association of Connecticut v. Lamont, the Second Circuit extensively analyzed case law
concerning the use of quarantines as a public health safety measure in the face of infectious disease,
and reached the conclusion that defendants in that case were entitled to qualified immunity because
the substantive rights of people quarantined in connection with infectious disease control are not
clearly established. 970 F.3d 174, 191 (2d Cir. 2020). In that case, plaintiffs were subjected to,
or at risk of being subjected to, home confinement for up to three weeks (i.e., the longest possible
incubation period for Ebola virus) by declaration of the State of Connecticut, even though this
measure was more stringent than guidelines promulgated by the Center for Disease Control. Id.
at 178-182. Plaintiffs argued that the imposition of this quarantine violated their substantive due
process rights because “quarantines—a form of civil detention—implicate fundamental liberty
interests, existing law clearly establishes that officials may impose them only when necessary to
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achieve a compelling state interest and in the absence of less restrictive means.” Id. at 187. The
Second Circuit rejected this argument and held that “the due process standards articulated in Jones
[v. United States, 463 U.S. 354 (1983)], as in Project Release [v. Prevost, 722 F.2d 960 (2d Cir.
1983)], concern civil commitment of the mentally ill. Taking a generalized statement like that
found in Project Release or Jones as evidence of a ‘clearly established rule’ in the context of
quarantines conflicts with the Supreme Court’s directive that we should not ‘define clearly
established law at a high level of generality.’” Id. at 188 (emphasis added). Defendants in that
case were entitled to qualified immunity because “[n]either civil commitment law nor other
infectious disease cases had clearly articulated the substantive due process standard Appellants
urge should have governed [defendant’s] actions.” Id. at 191.
Plaintiff’s deprivation of liberty is distinguishable from both the quarantines imposed in
Liberian Community Association of Connecticut—i.e., Plaintiff was involuntary hospitalized
rather than ordered to engage in home quarantine—and the hospitalizations analyzed in cases such
as Project Release and Jones—i.e., Plaintiff was hospitalized based upon his contraction of an
infectious disease rather than his mental health. Nonetheless, the Court is convinced, based upon
Liberian Community Association of Connecticut, that it would be inappropriate to infer a clearly
established rule in the context of hospitalization for infectious disease control based upon caselaw
concerning civil commitment for mental illness. As the Second Circuit noted, the two district court
cases in this Circuit that previously analyzed involuntary hospitalizations for disease control
employed distinct standards. Compare Best, 2003 WL 21518829, at *8 (applying least restrictive
means test to analyze involuntary hospitalization of person infected with tuberculosis) with United
States ex rel. Siegel v. Shinnick, 219 F. Supp. 789, 790–91 (E.D.N.Y. 1963) (upholding the
decision to isolate a woman who arrived in the United States from a region infected with smallpox
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for the entire incubation period of the disease as “reached in obvious good faith” after “forthright,
reasoned and circumstantially reassuring” consideration). The use of different analyses further
“‘demonstrates that the law on the point [was] not well established.’” Liberian Cmty. Ass’n of
Connecticut, 970 F.3d at 191 (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1868, 198 L. Ed. 2d 290
(2017)). Accordingly, WCDOH Defendants are entitled to summary judgment as to Plaintiff’s
substantive due process claim.
Similarly, and as an alternative ground for granting summary judgment in favor of
WCDOH Defendants with respect to Plaintiff’s Fourth Amendment claim, the Court finds that
WCDOH Defendants’ arrest of Plaintiff on April 23, 2015 and his continued detention thereafter
did not violate a clearly established right to the extent it is predicated upon the dissipation of
probable cause. While courts have recognized that probable cause can dissipate over time, the
Second Circuit has not directly addressed whether an officer can be liable for false imprisonment,
false arrest, or unlawful seizure if, after a lawful warrant is issued, probable cause dissipates prior
to the subject’s arrest, nor whether “an officer can be liable for false imprisonment if, after a lawful
arrest, probable cause dissipates and the suspect is not released from custody.” Walker v. City of
New York, No. 15 CV 500, 2017 WL 2799159, at *5 n.5 (E.D.N.Y. June 27, 2017). See also
United States v. Pabon, 871 F.3d 164, 177 (2d Cir. 2017) (finding it unnecessary to decide whether
an officer may, in an extreme case, be required to release a detainee arrested without a warrant
where probable cause has unequivocally dissipated, rendering further detention unreasonable);
Berrio v. City of New York, No. 15-cv-9570, 2019 WL 1437585, at *7 n.7 (S.D.N.Y. Mar. 29,
2019) (“Plaintiff provides no legal authority to support the conclusion that she can maintain a claim
for false imprisonment, or failure to intervene, for the time she was held after probable cause
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dissipated”).
Thus, no “clearly established” right has been identified here with respect to
Plaintiff’s prolonged detention claims.
By contrast, WCDOH Defendants do not make any argument upon which the Court could
conclude that Plaintiff’s retaliation claim is predicated upon a right that was not clearly established.
Nor could WCDOH Defendants persuasively make such an argument because Plaintiff’s right to
seek judicial relief from WCDOH Defendants’ actions is well established under the First
Amendment. See, e.g., Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83,
91 (2d Cir. 2002) (“The rights to complain to public officials and to seek administrative and
judicial relief from their actions are protected by the First Amendment.”) (citing Franco v. Kelly,
854 F.2d 584, 589 (2d Cir. 1988); United Mine Workers v. Illinois State Bar Ass’n., 389 U.S. 217,
222, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967).
B.
Whether Defendants’ Conduct Violated a Clearly Established Right.
Plaintiff’s only federal claim for which he has asserted a clearly established right is his
First Amendment retaliation claim. As discussed above, Plaintiff’s claim sufficiently asserts
circumstantial and direct evidence supporting each element of Plaintiff’s retaliation claim.
Accordingly, WCDOH Defendants are not entitled to qualified immunity.
*
*
*
The Court holds that WCDOH Defendants are entitled to qualified immunity with respect
to Plaintiff’s Fourth Amendment unlawful seizure claim and Plaintiff’s substantive due process
claim, but that WCDOH Defendants are not entitled to qualified immunity with respect to
Plaintiff’s First Amendment retaliation claim. Accordingly, summary judgment is granted to
WCDOH Defendants with respect to Plaintiff’s Section 1983 Fourth Amendment and substantive
due process claims and denied with respect to Plaintiff’s Section 1983 First Amendment retaliation
claim.
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V.
False Imprisonment
A claim for false arrest brought under Bivens or New York law requires proof that: “(1) the
defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of the confinement,
(3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise
privileged.” Jocks v. Tavernier, 316 F.3d 128, 134–35 (2d Cir. 2003). The confinement is
“otherwise privileged” if probable cause exists at the time of the arrest. Id. at 135; Henning v. City
of New York, No. 09–CV–3998, 2012 WL 2700505, at *4 (E.D.N.Y. July 5, 2012). Therefore, the
existence of probable cause “is an absolute defense to a false arrest claim.” Jaegly v. Couch, 439
F.3d 149, 152 (2d Cir. 2006); Evans v. Solomon, 681 F. Supp. 2d 233, 241 (E.D.N.Y. 2010). See
also Johnson v. City of New York, 2006 WL 2354815, at *3 (S.D.N.Y. Aug.14, 2006) (“a false
arrest claim fails if the underlying detention occurred during a search pursuant to a warrant
predicated on probable cause.” (citing Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587,
69 L.Ed.2d 340 (1981)); Ben-Zaken v. City of New Rochelle, 273 A.D.2d 426, 427, 710 N.Y.S.2d
106, 107 (1st Dept. 2000) (“A cause of action alleging false imprisonment does not lie where, as
here, the defendants can establish the existence of probable cause for the plaintiff’s arrest.”)
As discussed at length above, the Court finds that Plaintiff’s confinement was supported
by probable cause and that Plaintiff’s continued confinement after May 23, 2015 was obtained on
Plaintiff’s consent. As such, there can be no genuine dispute of material fact that Plaintiff’s false
imprisonment claim fails because his confinement was privileged and, in part, upon consent.
Accordingly, Defendants’ motions for summary judgment are granted with respect to Plaintiff’s
false imprisonment claim.
VI.
Malicious Prosecution
“Probable cause to believe that a person committed a crime is a complete defense to claims
of . . . malicious prosecution[.]” Batten v. City of New York, 133 A.D.3d 803, 805, 20 N.Y.S.3d
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160, 162–63 (2d Dept. 2015) (quoting Fortunato v. City of New York, 63 A.D.3d 880, 880, 882
N.Y.S.2d 195 (2d Dept. 2009); see also Bratge v. Simons, 173 A.D.3d 1623, 1624, 102 N.Y.S.3d
818, 820 (4th Dept. 2019); Broyles v. Town of Evans, 147 A.D.3d 1496, 1496, 47 N.Y.S.3d 605
(4th Dept. 2017); Kirchner v. County of Niagara, 153 A.D.3d 1572, 1573, 61 N.Y.S.3d 406 (4th
Dept. 2017). As discussed at length above, the Court finds that Plaintiff’s confinement was
supported by probable cause, that probable cause did not dissipate, and that Plaintiff’s continued
confinement after May 23, 2015 was obtained on Plaintiff’s consent. Accordingly, Defendants’
motions for summary judgment are granted with respect to Plaintiff’s malicious prosecution claim.
VII.
Abuse of Process Claims
“In New York, a malicious abuse of process claim lies against a defendant who (1) employs
regularly issued legal process to compel performance or forbearance of some act (2) with intent to
do harm without excuse or justification, and (3) in order to obtain a collateral objective that is
outside the legitimate ends of the process.” Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994). As
discussed below, Plaintiff’s abuse of process claim fails, to the extent it is predicated upon either
WCDOH Defendants’ initial application to Justice Adler seeking his detention, or WCDOH
Defendants’ role in his initial arrest, because, given the presence of probable cause, WCDOH
Defendants’ use of process is justified. However, to the extent Plaintiff’s claim against WCDOH
Defendants is predicated upon WCDOH Defendants’ application to extend his confinement on
May 18, 2015, the Court finds that there is a triable issue as to whether WCDOH Defendants were
motivated by a collateral objective—i.e., to leverage Plaintiff into dropping his claims. Plaintiff’s
claim fails as against WMC Defendants because they did not issue, employ, or participate in, any
legal process.
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A.
WCDOH Defendants
WCDOH Defendants argues that the existence of probable cause is a complete defense to
an abuse of process claim. (WCDOH Moving Br. at 22.) In his opposition papers, Plaintiff does
not directly address whether probable cause is a complete defense to an abuse of process claim but
asserts, among other things that, “just as a jury could find that Defendants were motivated by
retaliatory animus . . . there is more than adequate evidence on which a jury could rely to find that
Defendants pursued and continued Plaintiff’s confinement because of an improper collateral
objective: avoiding civil liability.” (Pltf Opp. at 40.)
WCDOH Defendants cite Granato v. City of New York for the position that, while probable
cause is not an element of an abuse of process claim, “a showing of probable cause at the time
process issued suffices also to establish ‘excuse or justification’ for the purposes of a defense to
abuse of process.” No. 98-CV-667 (ILG), 1999 WL 1129611, at *7 (E.D.N.Y. Oct. 18, 1999)
(citing Berman v. Silver, Forrester & Schisano, 156 A.D.2d 624, 625, 549 N.Y.S.2d 125, 127 (2d
Dept. 1989). Besides the cases cited by Plaintiff, numerous other courts in this Circuit have held
that probable cause is a complete defense to an abuse of process claim. See, e.g., Jones v. J.C.
Penny’s Dept. Stores, Inc., 317 F. App’x 71, 74 (2d Cir. 2009) (“The conclusion that Jones could
not prevail on her claims that the officers lacked probable cause for her arrest or that they
discriminated against her based on her race required dismissal of her state and federal claims of
abuse of process.”); Savino v. City of New York, 331 F.3d 63, 77 (2d Cir. 2003) (overturning denial
of summary judgment where district court “erred in relying on a lack of probable cause to infer
that, in securing Savino’s arrest, defendants acted with malice or with a collateral objective that
was outside the legitimate ends of the legal process.”); McIntosh v. City of New York, No.
14CV00051FBST, 2017 WL 473840, at *5 (E.D.N.Y. Feb. 3, 2017) (granting summary judgment
as to substantive due process claim “[b]ecause there was probable cause for plaintiff’s arrest.”),
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aff’d, 722 F. App’x 42 (2d Cir. 2018); Irish v. The City of New York, No. 09 CIV.5568(RMB),
2010 WL 5065896, at *6 (S.D.N.Y. Dec. 6, 2010) (“Defendants argue persuasively that Plaintiff
cannot establish the essential elements of an abuse of process claim because ‘there was probable
cause to prosecute [P]laintiff for robbery and grand larceny.’” (citing Sforza v. City of New York,
No. 07 Civ. 6122, 2009 U.S. Dist. LEXIS 27358, at *49–50, 2009 WL 857496 (S.D.N.Y. Mar. 31,
2009)); Pierre v. City of New York, 05–CV–5018 (JFB)(KAM), 2007 WL 2403573, at *12
(E.D.N.Y. Aug. 17, 2007) (holding, in the alternative, that summary judgment was warranted on
abuse of process claim because defendants established probable cause to prosecute plaintiffs);
Golden v. City of New York, 418 F. Supp. 2d 226, 235 (E.D.N.Y. 2006) (“Since I have concluded
that there was probable cause for plaintiff’s arrest and prosecution, defendants had an excuse and
justification for employing regularly issued process.”); DeVito v. Barrant, 03–CV–1927
(DLI)(RLM), 2005 WL 2033722, at *9 (E.D.N.Y. Aug. 23, 2005) (“the existence of probable
cause, which the court has found as a matter of law, bars plaintiff’s abuse of process claim”);
Almonte v. City of New York, 03–CV–5078 (ARR), 2005 WL 1229739, at *5 (E.D.N.Y. May 20,
2005) (“The existence of probable cause offers a complete defense to a claim of abuse of
process.”); Hickey v. City of N.Y., No. 01 Civ. 6506(GEL), 2004 WL 2724079, at *7 (S.D.N.Y.
Nov. 29, 2004) (concluding that probable cause offers a complete defense to an abuse of process
claim).
The Court agrees that the existence of probable cause at the time the process is issued
constitutes a complete defense to a claim of abuse of process under New York law. Accordingly,
Plaintiff’s abuse of process claim does not survive a motion for summary judgment to the extent
it is predicated upon WCDOH Defendants’ conduct in seeking his initial confinement, i.e.,
obtaining the order authorizing his confinement, or participating in his arrest on April 23, 2015.
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Nonetheless, the Court reaches a different conclusion with respect to WCDOH Defendants’
conduct in connection with the order to show cause process after May 18, 2015. The fact that
probable cause supported the initial arrest is irrelevant as to whether WCDOH Defendants’
subsequent conduct was justified, and this Court separately held that there was sufficient evidence
for Plaintiff’s First Amendment retaliation claim to survive a motion for summary judgment. The
conduct relevant to Plaintiff’s retaliation claim—i.e., WCDOH Defendants’ alleged improper
motive for seeking to continue to confine Plaintiff—is equally dispositive here. As a reasonable
jury could conclude that WCDOH Defendants retaliated against Plaintiff in seeking to extend his
confinement, it follows that a reasonable jury could conclude that WCDOH Defendants order to
show cause application was in pursuit of a collateral objective – i.e., to leverage Plaintiff into
dropping his pursuit of litigation against WCDOH Defendants.
Accordingly, WCDOH
Defendants’ motion for summary judgment is debued with respect to Plaintiff’s abuse of process
claim.
B.
WMC Defendants
By contrast, the Court finds that Plaintiff’s claim for abuse of process should be dismissed
as against WMC Defendants because they did not employ or facilitate any legal process. WMC
Defendants argue, among other things, that a grant of summary judgment in its favor is proper
because there is no dispute that WMC did not submit any supporting affidavits or other documents
in support of the application to extend Plaintiff’s proceedings, and thus it did not employ regularly
issued legal process to compel performance or forbearance of some act. There is no allegation that
WMC Defendants participated in, or prompted the initiation of, any court proceedings. Instead,
Plaintiff contends that WMC either had an obligation to submit exculpatory materials to the Court
or that they participated in a legal process because they possessed discretion to discharge Plaintiff
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under PHL § 2123. (See Pltf Opp. at 39 (arguing that WMC’s “affirmative decision to continue
and prolong Plaintiff’s confinement constitutes the employment of legal process.”).)
In support of its position, Plaintiff cites Ramos v. City of New York, 285 A.D.2d 284, 289,
729 N.Y.S.2d 678 (1st Dept. 2001). Ramos held that a civil defendant that was not a litigant in the
underlying proceeding can still be the cause injuries in the context of a malicious prosecution claim
where they fail “to make a full and complete statement of the facts to the District Attorney or the
court, or hold[] back information that might have affected the results, with that defendant’s
initiation of a malicious prosecution.” Id. at 289. However, in Ramos, defendant New York City
Department of Social Services’ Human Resources Administration had “an agreement under which
HRA referred claims of sexual abuse of day care center children to the District Attorney” and
submitted a referral for prosecution to the district attorney that omitted exculpatory information.
Id. at 288.
As this Court has previously discussed, with respect to claims like the one envisioned in
Ramos, a defendant’s provision of information, or withholding of information, is only capable of
satisfying the “issuance of legal process” element of a malicious process claim if it was done in
order to facilitate or effect the underlying prosecution. Moritz v. Town of Warwick, No. 15-CV5424 (NSR), 2016 WL 3248494, at *5 (S.D.N.Y. June 9, 2016) (“In order to be found to have
issued process, a defendant must have promoted or facilitated the prosecution . . . The
intentional provision of false information regarding a plaintiff’s crimes to cause a plaintiff’s false
arrest ‘is sufficient to constitute issuance of process.’” (emphasis added) (citations omitted)).
WMC Defendants are not alleged to have promoted or facilitated the order to show cause
application in order to extend Plaintiff’s detention.
Instead, they are alleged to have not
sufficiently participated in the legal process by failing to provide exculpatory information to
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Justice Adler once WCDOH Defendants sought an order to show cause. Plaintiff could sustain a
claim against WMC Defendants if it were alleged that WMC Defendants prompted WCDOH
Defendants to seek the order to show cause and failed to provide exculpatory information to the
WCDOH Defendants in making the referral. But there is no such allegation here.
To the extent Plaintiff argues that WMC Defendants failure to discharge Plaintiff despite
their discretionary authority to do so pursuant to PHL § 2123 constitutes the employment of
regularly issued legal process, the Court disagrees. Abuse of process has been described as an
obscure tort “which is rarely brought to the attention of the courts . . and the vital elements of
which are not clearly defined.” Gratton v. Vadney, 55 Misc. 3d 1208(A), 57 N.Y.S.3d 675 (N.Y.
Sup. Ct. Essex County, 2017) (quotation marks and citation omitted). Nonetheless, the Court is
satisfied that, ill-defined though the tort may be, the failure to exercise discretionary authority to
discharge a patient pursuant to PHL § 2123 “cannot be regarded as process for it is not a ‘direction
or demand that the person to whom it is directed . . . perform or refrain from the doing of some
prescribed act.’” Julian J. Studley, Inc. v. Lefrak, 41 N.Y.2d 881, 884, 362 N.E.2d 611, 613, 393
N.Y.S.2d 980, 982 (1977) (quoting Williams v Williams, 23 NY2d 592, 596 (1969).
Accordingly, WMC Defendants’ motion for summary judgment is GRANTED with
respect to Plaintiff’s abuse of process claim.
VIII.
Immunity Under State Law
WCDOH Defendants makes the conclusory argument that “the individually-named County
Defendants are protected from suit in the present matter [with respect to all state law claims]
pursuant to New York Public Health Law § 329(1),” which states that, “[n]o health officer,
inspector, investigator, public health nurse, or other representative of a health officer, and no
person or persons other than the county, city, village or town by which such health officer or
representative thereof is employed shall be sued or held to liability for any act done or omitted by
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any such health officer or representative of a health officer in good faith and with ordinary
discretion on behalf or under the direction of such county, city, village or town pursuant to its
regulations or ordinances, or the sanitary code, or this chapter.”
Plaintiff argues in response that WCDOH Defendants cannot assert immunity from conduct
that is actionable under Section 1983 based on state law. (Pltf Opp. at 34.) The Court agrees to
the extent that Plaintiff is arguing that PHL § 329 does not control WCDOH Defendants’ immunity
from claims arising under federal law. The Court disagrees to the extent that Plaintiff argues that
PHL § 329 is incapable of providing a defense as to state law claims. Martinez v. State of Cal.,
444 U.S. 277, 283, 100 S. Ct. 553, 558, 62 L. Ed. 2d 481 (1980) (“We therefore find no merit in
the contention that the State’s immunity statute is unconstitutional when applied to defeat a tort
claim arising under state law.”). Plaintiff has not clearly invited this Court to pass judgment on
whether PHL § 329’s facial grant of immunity as to state law claims should be deemed
unconstitutional and the Court does not take a view on that argument at this stage of the litigation.
Plaintiff also argues that, even if the statute could apply, summary judgment is
inappropriate because PHL § 329 only shields acts “done or omitted . . . in good faith with ordinary
discretion,” and that, Plaintiff has adduced ample evidence that the WCDOH Defendants acted in
bad faith and beyond the outer bounds of appropriate professional discretion. (Pltf Opp. at 34.)
As discussed in greater detail above, the Court concluded that there was a genuine dispute of
material fact as to whether WCDOH Defendants acted in a retaliatory fashion when seeking to
continue to Plaintiff’s hospitalization. For the same reason, the Court cannot at this stage conclude
that WCDOH Defendants acted in good faith and denies WCDOH Defendants’ motion for
summary judgment to the extent it is premised upon immunity pursuant to PHL § 329.
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Plaintiff separately argued that WCDOH Defendants failed to assert PHL § 329 as an
affirmative defense in their responsive pleadings and it is thus waived pursuant to Rule 8(c) of the
Federal Rules of Civil Procedure. WCDOH Defendants respond that they asserted the affirmative
defense of absolute immunity in their responsive pleadings and that accordingly it is not waived.
Confusingly, WCDOH Defendants cite to an exhibit that merely contains Plaintiff’s Amended
Complaint. (WCDOH Reply at 10 (citing ECF No. 132-14 (WCDOH Ex. L) at § 62-64.) In any
event, a review of WCDOH Defendants’ Answer to the Amended Complaint reveals that it pleaded
absolute immunity as an affirmative defense. (ECF No. 97 (WCDOH Defendants Answer) at 10
¶ 62.)
Even assuming that WCDOH Defendants general assertion of “absolute immunity” was
insufficient to effectively plead immunity pursuant to PHL § 329 as an affirmative defense, the
Court declines to exercise its discretion to deem the defense waived. “It is well established in this
Circuit that an affirmative defense may be asserted even at summary judgment where the party
opposing the affirmative defense has the opportunity to respond effectively to that defense, and
has otherwise suffered no prejudice as a result of its late pleading.” In re Livent, Inc. Noteholders
Sec. Litig., 355 F. Supp. 2d 722, 727 (S.D.N.Y. 2005) (citing Astor Holdings, Inc. v. Roski, 325 F.
Supp. 2d 251, 260–261 (S.D.N.Y. 2003); DeVito v. Pension Plan of Local 819 I.B.T. Pension
Fund, 975 F. Supp. 258, 263 (S.D.N.Y. 1997)).
Plaintiff was not unfairly prejudiced by the late introduction of PHL § 329 as an affirmative
defense because it is abundantly clear that Plaintiff is well prepared to oppose that defense with
evidence he has obtained in discovery. As Plaintiff argues, the applicability of PHL § 329 turns
on whether WCDOH Defendants acted in good faith. (Pltf. Opp. at 34.) In developing his case
for liability pursuant to several of his claims, including his claim for malicious abuse of process,
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Plaintiff sought and obtained evidence demonstrating potential bad faith conduct by the WCDOH
Defendants that, if accepted by a jury, could result in successful opposition to the affirmative
defense.
IX.
Municipal Liability
WCDOH Defendants assert that “Plaintiff has not produced sufficient evidence to
withstand summary judgment with respect to his constitutional claims against the individual
defendants, thus his claims against Defendant the County of Westchester cannot survive.”
(WCDOH Moving Br. at 23.) In support of this position, WCDOH Defendants cite cases, such as
Warheit v. City of New York, 2006 WL 2381871 (S.D.N.Y. Aug. 15, 2006), setting forth the
standard for establishing Monell liability. (WCDOH Opp. at 24.)
Plaintiff correctly responds that the County of Westchester is “sued only under respondeat
superior in connection with Plaintiff’s state law claims” and that Monell does not govern state law
claims. (Pltf. Opp. at 34-35 n.6.) WCDOH Defendants seem to concede this point by failing to
respond to Plaintiff’s argument in their reply papers. In any event, WCDOH Defendants bare
recitation of standards relating to Monell liability does not present this Court with any basis to
grant summary judgment as to Defendant County of Westchester with respect to Plaintiff’s state
law claims.
X.
Plaintiff’s Claims Against the John and Jane Doe Defendants
Plaintiff names in his Amended Complaint six John and Jane Doe Defendants that are
alleged to have been employees of the County of Westchester, WCDOH, and/or WMC. (See
Amended Compl. (ECF No. 39) ¶ 12.) WCDOH Defendants argued that “Plaintiff’s claims against
the Jane/John Doe Defendants should be summarily dismissed” because “[d]iscovery is now
closed and Plaintiff [failed] to timely identify and serve Jane/John Doe Defendants.” (WCDOH
Moving Br. at 25.) Plaintiff did not respond to this argument in his opposition papers, appears to
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have only opposed summary judgment with respect to the WCDOH Defendants and WMC
Defendants, and defined the WCDOH Defendants and WMC Defendants in his opposition papers
to exclude the John and Jane Doe Defendants. (See Pltf Opp. at 21 n. 3 & 36 n.7.) It is quite
conceivable that Plaintiff missed this argument because WCDOH Defendants buried it in a short
paragraph within a section of their moving papers on an entirely unrelated argument.
While the Court disapproves of WCDOH Defendants’ dispositive argument by ambush
approach, dismissal without prejudice is nonetheless warranted. See, e.g., Scott v. City of Mount
Vernon, No. 14-CV-4441 (KMK), 2017 WL 1194490, at *33 (S.D.N.Y. Mar. 30, 2017) (“Plaintiffs
have made no attempt to amend their Complaint to include the real identities of those individuals.
As discovery has now closed, the proper course is to dismiss the John Doe Defendants without
prejudice.”); Sachs v. Cantwell, No. 10 CIV. 1663 JPO, 2012 WL 3822220, at *10 (S.D.N.Y. Sept.
4, 2012); Delrosario v. City of New York, No. 07 Civ. 2027, 2010 WL 882990, at *5 (S.D.N.Y.
Mar. 4, 2010); Coward v. Town and Village of Harrison, 665 F. Supp. 2d 281, 300–01 (S.D.N.Y.
2009); Jeanty v. County of Orange, 379 F. Supp. 2d 533, 536 n. 3 (S.D.N.Y. 2005). The operative
events giving rise to this litigation occurred over five years ago, the action was initiated over four
years ago, discovery has closed, and Plaintiff has made no apparent attempt to further amend his
complaint to include the real identities of the John and Jane Doe Defendants. It bears emphasizing
that Plaintiff has taken discovery of the very entities which he alleges were the employers of the
John and Jane Doe Defendants and has still come no closer to identifying the true identities of
those parties.
Accordingly, the Court dismisses John Does # 1 – 3 and Jane Does # 1 – 3 from the case
without prejudice for failure to prosecute.
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CONCLUSION
For the foregoing reasons, the Defendants' motions for sUIIllnaiy judgment ai·e GRANTED
in pa1t an d DENIED in pait. Summaiy judgment is granted on all of Plaintiffs claims against
Defendants Westchester Medical Center and Miral A. Subhani. Summaiy judgment is granted on
Plaintiffs Section 1983 Fomt h Amendment an d substantive due process claims, malicious
prosecution claim, and false imprisonment claims against the WCDOH Defendants. All claims
against John Does #1 - 3 an d Jan e Does # 1 - 3 ai·e dismissed without prejudice. Plaintiffs
remaining claims are Section 1983 First Amendment retaliation an d state law abuse of process
against WCDOH Defendants.
The Clerk of the Comt is respectfully directed to terminate th e motions at ECF Nos. 132
and 133, enter judgment in favor of Defendants Westchester Medical Center an d Miral A. Subhani,
and remove Defendants Westchester Medical Center an d Miral A. Subhani from the case caption.
The remaining patties are directed to appear for a telephonic pre-trial conference on Febrna1 24,
y
2021 at 2:00 P.M.
To access the telephonic pre-trial conference, please follow th ese directions: (1) Dial the
Meeting Number: (877) 336-1839; (2) Enter the Access Code: 1231334 #; (3) Press pound(#) to
enter the conference as a guest.
Dated:
SO ORDERED:
December 18, 2020
White Plains, New York
United States District Judge
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