Jones, et al v. Crisis Services of Erie County, et al

Filing 77

DECISION AND ORDER: For the reasons stated, the Motions to Dismiss the Amended Complaint by McCrady, Drs. Romero, Park, and Tan, and ECMC, ECF Nos. 5 , 8 , 26 , 41 are GRANTED, the Claims naming them are DISMISSED as to them, and the Clerk of Co urt is directed to terminate them as Defendants in this case. The Motion to Dismiss the Amended Complaint by Harris, ECF No. 74 , is GRANTED IN PART, and the First, Second, Third, Fourth, Ninth, and Tenth Claims are DISMISSED as to him. The Court will refer the case to a Magistrate Judge for pretrial proceedings by a separate Order.The remaining Claims and Defendants are as follows:The First Claim against CSEC, Sherry W., Mandy M., and R.G.;The Second Claim against CSEC, Sherry W., M andy M., R.G., and Buffalo Police Officers John Doe 1 and 2;The Third Claim against CSEC, Sherry W., Mandy M., R.G., and Buffalo Police Officers John Doe 1 and 2;The Fourth Claim against CSEC, Sherry W., Mandy M., R.G., and Buffalo Police Offic ers John Doe 1 and 2;The Eighth Claim against Harris; andThe Eleventh Claim against Harris, CSEC, Sherry W., Mandy M., R.G., and Buffalo Police Officers John Doe 1 and 2. Finally, Plaintiffs' Motions for various forms of relief, ECF Nos. 60 - 61 , are DENIED.IT IS SO ORDERED.Signed by Hon. Frank P. Geraci, Jr. on 8/3/18. (JO)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROCHELLE M. JONES and JAMES L. THOMAS,
Plaintiffs,
Case # 16-CV-234-FPG
v.
DECISION AND ORDER
CRISIS SERVICES OF ERIE COUNTY,
“SHERRY W.,” “MANDY M.,” “R.G.,”
JULIAN HARRIS, MYLINDA MCCREADY, 1
ERIE COUNTY MEDICAL CENTER,
RICARDO ROMERO, M.D., WON HOON PARK,
M.D., ALFONSO TAN, M.D., BUFFALO POLICE
DEPARTMENT, BUFFALO POLICE OFFICER
JOHN DOE 1, BUFFLO POLICE OFFICER
JOHN DOE 2,
Defendants.

INTRODUCTION
On March 21, 2016, Plaintiffs Rochelle M. Jones and James L. Thomas filed a Complaint
alleging various claims against Defendants stemming from Jones’s involuntary commitment at
Erie County Medical Center (ECMC) under New York’s Mental Hygiene Law (MHL). See ECF
No. 1.
Nearly two months later, on May 5, 2016, Plaintiffs filed an Amended Complaint. ECF
No. 3. Plaintiffs never served the original Complaint on any of the Defendants before filing the
Amended Complaint. The Amended Complaint alleged facts similar to the original Complaint
and eleven claims: (1) Defendants Crisis Services of Erie County (CSEC), Sherry W., Mandy M.,
R.G., and Julian Harris conspired to deprive Jones of her civil rights in violation of 42 U.S.C. §
1985(3); (2) CSEC, Sherry W., Mandy M., R.G., Harris, and Buffalo Police Officers John Doe 1
and 2 violated Jones’s Fourth Amendment rights in turn violating 42 U.S.C. § 1983; (3) CSEC,

1

The Court notes that Plaintiffs named Mylinda “McCready” as a Defendant in their suit. See ECF No. 3. Based on
McCrady’s Motion to Dismiss, however, her last name is “McCrady” and contains no “e.” See ECF No. 41.

Sherry W., Mandy M., R.G., Harris, Buffalo Police Officers John Doe 1 and 2, Ricardo Romero,
M.D., Won Hoon Park, M.D., and Alfonso Tan, M.D., violated Jones’s due process rights
guaranteed under the Fourteenth Amendment, also violating § 1983; (4) CSEC, Sherry W., Mandy
M., R.G., Harris, Buffalo Police Officers John Doe 1 and 2, Drs. Romero, Park, and Tan falsely
arrested and imprisoned Jones; (5) CSEC, Sherry W., Mandy M., R.G., Harris, Buffalo Police
Officers John Doe 1 and 2, and Drs. Romero, Park, and Tan violated the MHL; (6) Drs. Romero,
Park, and Tan (the Physicians) and ECMC committed medical malpractice while treating Jones;
(7) the Physicians and ECMC failed to receive informed consent from Jones for treatments they
administered to her; (8) Harris and Mylinda McCrady defamed Jones; (9) Harris intentionally
inflicted emotional distress upon Jones; (10) Harris defamed Thomas; and (11) a derivative spousal
claim on Thomas’s behalf against all Defendants. See ECF No. 3.
Thereafter, Harris, McCrady, ECMC and the Physicians moved to dismiss the Amended
Complaint. ECF Nos. 5, 8, 26, 41, 74. These motions are currently before the Court.
Additionally, in December of 2017, Plaintiffs moved to proceed in forma pauperis, for
appointment of counsel, and for other miscellaneous relief. See ECF Nos. 60-61. Because the
Court has since appointed an attorney to represent Plaintiffs, see ECF No. 62, these motions are
DENIED.
BACKGROUND 2
On March 21, 2015, Harris contacted CSEC, told representatives that he was Jones’s son
and was concerned for her safety, and requested that CSEC send an outreach team to conduct a
mental health evaluation of Jones. ECF No. 3 ¶¶ 38-41. He specifically noted that he was “not
sure” if Jones was suicidal or a danger to herself, and that he believed Jones was not sleeping
because she was posting on Facebook throughout the night. ECF No. 3 ¶ 42. In some of the posts,
2

The Court takes the following allegations from the Amended Complaint, ECF No. 3, and accepts them as true. Faber
v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011).

2

Jones said she thought she was Harriet Tubman and Moses. Id. ¶ 46. He also noted that Jones and
Thomas were living separately “due to drug abuse issues,” a statement that Harris allegedly knew
was false. Id. ¶ 43.
At the time, Harris was living in Washington, D.C., and was studying to receive a masters’
degree in social work. Id. ¶ 39. Consequently, he was familiar with the standards governing
emergency mental health admissions, including those under the MHL. Id.
At approximately 3:45 p.m. the same day, Sherry W. and Mandy M., CSEC employees,
traveled to Jones’s home. Id. ¶ 45. They explained what Harris told them and why they were
there. Id. ¶ 46. Jones allowed Sherry and Mandy to view her Facebook page, which did not contain
the post Harris described. Id. ¶ 47. Later in their conversation, Jones began to discuss historical
African-American figures with Sherry and Mandy. Id. ¶ 53. Sherry was visibly angered by the
conversation, which Jones attributed to prejudice and lack of cultural sensitivity and awareness.
Id. ¶ 56-57. After approximately twenty minutes, Sherry and Mandy left Jones’s home. Id. ¶¶ 4849.
After Sherry left Jones’s home, she called Harris and discussed the encounter with him.
Id. ¶ 59. Harris and Sherry agreed that he would monitor Jones’s behaviors and would contact
CSEC if a second evaluation was needed. Id. ¶ 60.
The evening of March 21, Jones’s dog was euthanized because of ongoing health problems.
Id. ¶ 64. Jones asked Thomas to stay with her for support. Id. ¶¶ 66-67.
Later that evening, Harris again contacted CSEC. Id. ¶ 71. During his call, he claimed
that Jones euthanized her dog, said she was Harriet Tubman, and was spending time with Thomas,
who is “evil.” Id.
The next day, March 22, 2015, McCrady contacted Jones. ECF No. 3 ¶ 73. During the
call, Jones told McCrady that Harris called CSEC on her. Id. ¶ 78. Jones asked McCrady to call
3

Harris and ask him why he contacted CSEC. Id. When McCrady contacted Harris, they
“apparently” agreed to have Jones removed from her home and hospitalized under the MHL. Id.
¶ 79.
Later that day, Harris contacted CSEC again. Id. During his call, he told the CSEC
representative that he sent a friend to check on Jones, the friend described her as “paranoid,” and
the friend heard her say that her daughter was coming to her house to kill her, so she would have
to kill her daughter first. Id. ¶ 83. Additionally, Harris said that Thomas was a drug user and was
staying with Jones, and that Jones was a lawyer who had not worked for some time. Id. Jones
alleges that these statements were false and Harris knew they were false. Id. ¶ 84.
At approximately 2:00 p.m. on March 22, 2015, Sherry and R.G. from CSEC arrived at
Jones’s home with five police officers. Id. ¶¶ 87-88. Jones was then involuntarily transported by
ambulance to ECMC under the MHL. Id. ¶¶ 122-24.
Jones arrived at ECMC at approximately 5:00 p.m. See id. ¶ 131. Jones informed ECMC
staff that she was a diabetic; despite this, she was not given water, food, or medication for nearly
twenty-four hours. Id. ¶¶ 138, 147, 155.
Later that evening, ECMC employees contacted Harris. Id. ¶ 156. Harris explained that
Jones was not sleeping properly, was fearful and paranoid, believed that her daughter was going
to kill her, had been “drinking a lot lately,” and was taking medication prescribed for her late dog.
Id. Jones alleged that these statements were false, Harris knew they were false, and Harris made
them to cause ECMC to admit her for psychiatric treatment. Id. ¶¶ 157-58.
Dr. Romero examined Jones at approximately midnight on March 22. ECF No. 3 ¶ 163.
At that time, Jones was fearful and had not received appropriate food, water, or medication for
over eight hours. Id. ¶¶ 164-65. Despite these conditions, Dr. Romero concluded that Jones
needed inpatient psychiatric stabilization. Id. ¶ 166.
4

Dr. Park examined Jones on March 23. Id. ¶ 167. He reviewed Harris’s statements and
found them to be credible without basis. Id. ¶ 168. Dr. Park also did not believe that Jones was a
lawyer and considered the assertion that she was a lawyer evidence that her sense of reality was
markedly impaired. Id. ¶¶ 169-70. Based on this information, he diagnosed Jones with “psychotic
disorder not otherwise specified” and prescribed antipsychotic medications. Id. ¶ 171.
On March 24, ECMC employees began administering the medications Dr. Park prescribed
to Jones. Id. ¶ 174. Jones did not give informed consent to the administration of the medications
and one medication, Haldol, was given to Jones against her will without a court order. Id. ¶¶ 17579.
Nearly a week later, on March 31, Jones began the process of challenging her commitment
at ECMC. Id. ¶ 191. Dr. Tan told Jones that if she challenged her commitment, he would “go
after” Jones’s law license. Id. ¶ 192. Dr. Tan also said that Jones had “Sundowner’s disease” and
certified that Jones required seven additional days of hospitalization. Id. ¶¶ 194-95.
Additionally, Dr. Tan prescribed medication to Jones that caused her to “emit a noise
similar to someone with Tourette’s Syndrome” and her face to twitch. Id. ¶ 203. Dr. Tan also
diagnosed Jones with bi-polar disease and prescribed her Depakote and Risperidol. Id. ¶¶ 205,
211. The Depakote and Haldol—the latter prescribed by Dr. Park—caused Jones’s legs to swell,
resulting in permanent damage to her knees and lower back. Id. ¶ 214. Jones’s complaints
regarding pain were ignored. Id. ¶ 215.
The Physicians and ECMC did not explain the risks, hazards, and effects of the medications
that were administered to her and did not allow her to refuse the medications. ECF No. 3 ¶¶ 22021.
On April 6, 2015, Jones was released from ECMC. Id. ¶ 222.

5

LEGAL STANDARD
A complaint will survive a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) when it states a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). A claim for relief is plausible
when the plaintiff pleads sufficient facts that allow the Court to draw reasonable inferences that
the defendant is liable for the alleged conduct. Iqbal, 556 U.S. at 678.
In considering the plausibility of a claim, the Court must accept factual allegations as true
and draw all reasonable inferences in the plaintiff’s favor. Faber v. Metro. Life Ins. Co., 648 F.3d
98, 104 (2d Cir. 2011). At the same time, the Court is not required to accord “[l]egal conclusions,
deductions, or opinions couched as factual allegations . . . a presumption of truthfulness.” In re
NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007) (quotation marks omitted); see also
Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987) (“As we have repeatedly held, complaints relying
on the civil rights statutes are insufficient unless they contain some specific allegations of fact
indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no
meaning.”).
It is well established that the Court must construe pro se submissions liberally and read
them “to raise the strongest arguments that they suggest.” Nicholas v. City of New York, No. 15CV-9592 (JPO), 2017 WL 2537293, at *2 (S.D.N.Y. June 12, 2017) (quoting Ortiz v. McBride,
323 F.3d 191, 194 (2d Cir. 2003)). Those principles apply, without question, to McCrady’s
Motion, since she has proceeded pro se for the entirety of the case. They do not apply, however,
to Plaintiffs’ Amended Complaint, even though it was filed pro se. Courts within the Second
Circuit have declined to liberally construe pleadings of seasoned, licensed attorneys proceeding
pro se. Chira v. Columbia Univ., 289 F. Supp. 2d 477, 482 (S.D.N.Y. 2003). Jones is both licensed

6

to practice law in New York and a seasoned attorney before this Court. 3 Consequently, the Court
will not construe the Amended Complaint liberally.
With these principles in mind, the Court now turns to a threshold issue it must consider
before evaluating the Motions to Dismiss: whether Plaintiffs’ Amended Complaint is a “legal
nullity” as argued by ECMC and the Physicians.
DISCUSSION
I.

The Amended Complaint Is Not a Legal Nullity
ECMC and the Physicians argue that the Amended Complaint is a “legal nullity” because

Plaintiffs failed to follow the requirements for amending the original Complaint as outlined in Rule
15. See ECF Nos. 5-4, 8-2, 26-3. Specifically, they argue that Plaintiffs did not seek leave from
Defendants or the Court to amend the Complaint under Rule 15(a)(2), and Plaintiffs were not
entitled to amend the Complaint as of right under Rule 15(a)(1) because they never served the
original Complaint and filed the Amended Complaint before Defendants filed their responsive
pleadings. Id.
The Court agrees that Plaintiffs violated Rule 15; however, the Court declines to strike the
Amended Complaint for two reasons. First, Defendants litigated the case for over two years with
the Amended Complaint as the operative pleading. They have filed motions to dismiss, allowed
Plaintiffs to respond, filed replies, and answered the counterclaims brought by other Defendants,
all based on the Amended Complaint. See ECF Nos. 5, 8, 10, 12, 20-21, 24, 26, 31-32, 35.
Moreover, Defendants did not object when Plaintiffs moved to appoint counsel and sought other
forms of relief ruled upon by the Court. See ECF Nos. 34, 42, 49, 50-53, 56-57, 60-62. Based on
this long history of litigation with no objections by Defendants, other than those raised in their

3

Jones is listed in the Attorney Directory maintained by the New York State Unified Court System as “currently
registered” and her next registration date is February 2020. Additionally, Jones has represented litigants in five cases
before this Court. See Case Nos. 02-CV-248, 04-CV-87, 05-CV-91, 05-CV-9, 07-CV-19.

7

pending Motions, Defendants appear to indicate “an intent to litigate the merits of the [A]mended
[C]omplaint” and consent to Plaintiffs’ use of more time to file the Amended Complaint. Cincotta
v. Hempstead Union Free Sch. Dist., No. 15-cv-4821 (ADS)(AKT), 2016 WL 4536873, at *7
(E.D.N.Y. Aug. 30, 2016).
Second, “Defendants point to no prejudice or any other ground on which the Court would
have denied the Plaintiff[s] leave to amend had they requested it under Rule 15(a)(2).” Cincotta,
2016 WL 4536873, at *7 (citing Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282
F.3d 83, 87 (2d Cir. 2002) (“Undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party or futility of amendment will serve to prevent an amendment prior to trial.”
(alterations and quotation marks omitted)). Consequently, the Amended Complaint is not a legal
nullity and is the operative pleading in this action. The Court next evaluates the Motions to
Dismiss.
II.

The Eighth Claim Is Dismissed as to McCrady
In her Motion, McCrady, proceeding pro se, stated that service was insufficient and that

there are no satisfactory causes of action against her. See ECF No. 41 ¶¶ 4, 6. The Court, therefore,
interprets McCrady’s Motion as one to dismiss under Rules 12(b)(5)-(6).
First, the Court notes that it granted Plaintiffs an extension of time under Rule 4(m) to serve
McCrady by August 15, 2016, which they did. See ECF Nos. 38, 49. Consequently, McCrady’s
Motion to Dismiss the Amended Complaint under Rule 12(b)(5) is DENIED AS MOOT. Her
Motion to Dismiss under Rule 12(b)(6), however, is GRANTED as to the Eighth Claim, which
alleges that McCrady defamed Jones.
To state a claim for defamation, a plaintiff must allege a “false statement, published without
privilege or authorization to a third party, constituting fault as judged by, at a minimum, a
8

negligence standard, and it must either cause special harm or constitute defamation per se.”
Arvanitakis v. Lester, 44 N.Y.S.3d 71, 72 (2d Dep’t 2016) (quoting Salvatore v. Kumar, 845
N.Y.S.2d 384, 389 (2d Dep’t 2007)) (quotation marks omitted). “The complaint must set forth the
particular words allegedly constituting defamation and it must also allege the time, place, and
manner of the false statement and specify to whom it was made.” Id. at 72-73 (citations omitted);
see also N.Y. C.P.L.R. 3016(a).
Here, the Amended Complaint contains no particular words allegedly stated by McCrady.
It alleges only that McCrady spoke with Jones and Harris on the phone, that McCrady “apparently”
conspired with Harris to have Jones removed from her home, and that McCrady called CSEC and
“knowingly provided false information[.]” ECF No. 3 ¶¶ 73, 78-81, 254. Accordingly, McCrady’s
Motion to Dismiss under Rule 12(b)(6) is GRANTED, and the Eighth Claim, the only Claim
naming McCrady, is DISMISSED as to her.
III.

The Fifth Claim Is Dismissed with Prejudice as to All Defendants
The Physicians and Harris move to dismiss Plaintiffs’ Fifth Claim with prejudice because

there is no private right of action under the MHL. ECF Nos. 8-2 at 13, 26-3 at 11-12, 74 at 13.
Plaintiffs did not respond to Defendants argument. Even if they had, however, it is clear that
Defendants are correct: there is no private right of action under the MHL. Lombardo v. Freebern,
No. 16-CV-7146 (KMK), 2018 WL 1627274, at *7 (S.D.N.Y. Mar. 30, 2018) (finding that the
MHL is a regulatory statute under which no private right of action exists for violations of its terms).
Consequently, Plaintiffs’ Fifth Claim is DISMISSED WITH PREJUDICE as to all Defendants.

9

IV.

Plaintiffs’ Claims Against the Physicians
The Physicians move to dismiss Plaintiffs’ Third, Fourth, Sixth, and Seventh Claims

against them. 4 See ECF Nos. 8-2, 26-3. The Court addresses each Claim below.
A.

The Fourth, Sixth, and Seventh Claims Are Dismissed as to the Physicians
Because Plaintiffs Abandoned Them

In their Motions, the Physicians argue that the Fourth, Sixth, and Seventh Claims should
be dismissed because the Amended Complaint does not properly allege the requisite elements. See
ECF Nos. 8-2 at 5-6, 26-3 at 13-14. 5 In response, Plaintiffs provide no counterargument in support
of these claims. See ECF No. 67-1. In fact, while Plaintiffs do argue that they have properly
alleged their First, Second, and Third Claims, they do not mention the Fourth, Sixth, and Seventh
Claims at all. Id. Consequently, the Court finds that Plaintiffs have abandoned the Fourth, Sixth,
and Seventh Claims and they are DISMISSED as to the Physicians. See, e.g., Moreau v. Peterson,
No. 7:14-cv-0201 (NSR), 2015 WL 4272024, at *4 (S.D.N.Y. July 13, 2015) (“Plaintiff’s failure
to respond to contentions raised in a motion to dismiss constitutes an abandonment of those
claims.” (alterations, citations, and quotation marks omitted)).
B.

Plaintiffs’ Third Claim Is Dismissed as to the Physicians Because Plaintiffs Do
Not Allege That They Are State Actors

Plaintiffs’ Third Claim alleges that the Physicians violated § 1983 when they violated
Jones’s Fourteenth Amendment due process rights by confining her in ECMC’s psychiatric unit
for seventeen days against her will. See ECF No. 3 ¶¶ 232-234. In their Motions, the Physicians
argue that Plaintiffs do not allege that they are state actors. See ECF Nos. 8-2 at 4, 26-3 at 7-8. In

4
Drs. Romero and Tan move jointly to dismiss the claims against them, while Dr. Park moves separately. See ECF
Nos. 8-2, 26-3. The Court analyzes the claims against all three jointly because Plaintiffs allege the same claims against
them.
5

It appears that counsel for Drs. Romero and Tan mistakenly filed two copies of the Motion to Dismiss in one
document. Consequently, the document is fourteen pages long, but contains two identical copies of the seven-page
brief. The Court refers to the first seven pages.

10

response, Plaintiffs argue that the Physicians’ treatment of Jones, including the administration of
medications, constitutes state action. See ECF No. 67-1 at 9. Additionally, Plaintiffs claim that
the jury must determine whether the Physicians are state actors. Id. at 11.
To state a claim under § 1983, a plaintiff must allege two elements: (1) “the violation of a
right secured by the Constitution and laws of the United States,” and (2) “the alleged deprivation
was committed by a person acting under color of state law.” Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 87-88 (2d Cir. 2015) (quoting Feingold v. New York, 366 F.3d 138, 159 (2d
Cir. 2004)). As to the second element, a plaintiff must specifically allege that the defendants are
state actors. Kashelkar v. Bluestone, 306 F. App’x 690, 692 (2d Cir. 2009) (citing Ciambriello v.
Cty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002)) (summary order).
Here, Plaintiffs’ Third Claim fails as to the Physicians because they do not allege that the
Physicians are state actors or are private actors who worked in concert with the state. Indeed,
Plaintiffs allege only that the Physicians are ECMC employees; they do not allege any involvement
with the state or that ECMC is a state actor. See ECF No. 3 ¶¶ 12-15.
Plaintiffs’ counterarguments are unavailing. The medications the Physicians administered
are irrelevant; Plaintiffs allege that the Physicians are state actors for a § 1983 claim to lie against
them. Plaintiffs have not properly alleged a § 1983 claim against them if she has not alleged that
they are state actors. Moreover, the jury may ultimately determine whether the Physicians are
state actors. See Logan v. Bennington College Corp., 72 F.3d 1017, 1027 (2d Cir. 1995). At this
stage of the litigation, however, Plaintiffs must allege that the Physicians are state actors for their
Claim to survive, which they have failed to do.

Consequently, Plaintiffs’ Third Claim is

DISMISSED as to the Physicians. The Court next considers Plaintiffs’ claims against ECMC.

11

V.

Plaintiffs’ Sixth and Seventh Claims Are Dismissed as to ECMC Because Plaintiffs
Abandoned Them
Plaintiffs allege two claims 6 against ECMC: it committed medical malpractice and failed

to secure informed consent from Jones for treatments it administered both in violation of New
York law. See ECF No. 3 ¶¶ 241-250. ECMC moves to dismiss those Claims. See ECF No. 5-4
at 11-13. In response, Plaintiffs make no counterarguments in support of maintaining those claims
against ECMC. Consequently, they are DISMISSED. See, e.g., Moreau, 2015 WL 4272024, at
*4. The Court next weighs Plaintiffs’ Claims against Harris.
VI.

Plaintiffs’ Claims Against Harris
Plaintiffs allege seven claims against Harris: the First through Fourth Claims and the Eighth

through Tenth Claims. The Court analyzes each Claim in turn below.
A.

Plaintiffs’ First, Fourth, Ninth, and Tenth Claims Are Dismissed Because
Plaintiffs Abandoned Them

In Harris’s Motion, argues for dismissal of the First, Fourth, Ninth, and Tenth Claims. See
ECF No. 74 at 6-15. In response, Plaintiffs make no arguments in support of their Claims. The
Court notes that, although Plaintiffs argue in support of the Eighth Claim, a defamation claim on
behalf of Jones, they do not argue in support of the Tenth Claim, a defamation claim on behalf of
Thomas. See ECF No. 74 at 6-15. Plaintiffs, therefore, have abandoned their First, Fourth, Ninth,
and Tenth Claims, and those Claims are DISMISSED.
B.

Plaintiffs’ Second and Third Claims Are Dismissed Because Plaintiffs Did Not
Allege that Harris’s Acts Constitute State Action

Harris moves to dismiss Plaintiffs’ Second and Third Claims for violations of § 1983 and
the Fourth and Fourteenth Amendments because Plaintiffs do not allege that he is a state actor.

6

The First through Fourth Claims allege events that occurred at ECMC, but do not name ECMC as a Defendant.

12

See ECF No. 74 at 12. In response, Plaintiffs argue only that they properly plead allegations to
support the Claims against Harris. See ECF No. 75 at 4-7.
Here, the Court must dismiss the Second and Third Claims against Harris for three reasons.
First, Plaintiffs have not alleged that Harris is a state actor, which, as explained above, is a
requirement for § 1983 claims. See Kashelkar, 306 F. App’x at 692. Of course, Plaintiffs cannot
allege that Harris is a state actor because, at the time, he was not; he was a private citizen and
student. See ECF No. 3 ¶ 16.
Second, Plaintiffs have not alleged that Harris’s actions are “attributable to the state.” See
Rice v. City of New York, 275 F. Supp. 3d 395, 403 (E.D.N.Y. 2017) (quoting Sybalski v. Indep.
Grp. Home Living Program, 546 F.3d 255, 257 (2d Cir. 2008)); see also Staten v. Patrolmen’s
Benevolent Ass’n of N.Y.C., Inc., 282 F. Supp. 3d 734, 740 (S.D.N.Y. 2017) (“The plaintiff . . . has
not alleged that [the defendant was] acting as an agent of—or at the direction of—the state or any
state actor.”). Specifically, Plaintiffs have not plausibly alleged facts to show that Harris’s acts
are attributable to the state under any of the requisite tests.
The actions of a nominally private entity are attributable to the state when: (1) the
entity acts pursuant to the “coercive power” of the state or is “controlled” by the
state (“the compulsion test”); (2) when the state provides “significant
encouragement” to the entity, the entity is a “willful participant in joint activity
with the [s]tate,” or the entity’s functions are “entwined” with state policies (“the
joint action test” or “close nexus test”); or (3) when the entity “has been delegated
a public function by the [s]tate,” (“the public function test”).
Sybalski, 546 F.3d at 258 (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531
U.S. 288, 296 (2001)). Plaintiffs did not allege that the state “controlled” or “coerced” Harris; that
the state “encouraged” Harris, that he “willfully participated” in its activity, or that he was
“entwined” with state polices; or that the state “delegated a public function” to him.
Third, and finally, “private persons . . . who act pursuant to state statutes to commit the
mentally ill cannot be held liable under [S]ection 1983.” Harvey v. Harvey, 949 F.2d 1127, 1133
13

(11th Cir. 1992); see also Vazquez v. Combs, No. 04 Civ.4189(GEL), 2004 WL 2404224, at *4
(S.D.N.Y. Oct. 22, 2004) (“[M]erely filing a complaint with the police, reporting a crime,
requesting criminal investigation of a person, or seeking a restraining order, even if the complaint
or report is deliberately false, does not give rise to a claim against the complainant for a civil rights
violation.”). In this case, Harris was acting pursuant to the MHL to begin involuntary commitment
procedures, acts for which he cannot be held liable under § 1983. Consequently, the Second and
Third Claims are DISMISSED as to Harris.
C.

Jones Plausibly Alleged the Eighth Claim Because Harris’s Statements
Constitute Defamation Per Se

Harris also moves to dismiss Jones’s Eighth Claim for defamation. In her Claim, Jones
alleges the specific statements Harris made that defamed her: Jones “publicly stated” she was
Harriet Tubman, she “seemed paranoid,” she intended to kill her daughter, she had been “drinking
a lot lately,” and she took Xanax prescribed for her late dog. ECF No. 3 ¶ 252. Harris made all
of these statements to representatives of CSEC, all the statements were false, and Harris knew they
were false. Id. ¶¶ 252-53.
Harris makes several arguments in support of his Motion: the statement that Jones “seemed
paranoid” is not actionable because it is an opinion; the statements do not constitute defamation
per se; Jones is not entitled to special damages because the call to CSEC was private; there is no
proximate cause between the statements and Jones’s alleged damages; and, the statements made
to CSEC were privileged. ECF No. 74 at 6-10. In response, Jones argues that she appropriately
alleged each element of her defamation claim, Harris knew the statements would lead to Jones’s
involuntary committal, which would, in turn, lead to her removal from the Erie County Bar
Association’s Indigent Prisoners’ Panel (the Panel), and that the statements were meant to injure
Jones in her profession. ECF No. 75 at 7-8.

14

To state a claim for defamation, a plaintiff must allege four elements: the defendant (1)
made a false statement about the plaintiff; (2) published it to a third party without authorization or
privilege; (3) with fault amounting to at least negligence; (4) that constitutes defamation per se or
causes special damages. Collins v. Travers Fine Jewels, Inc., No. 16-CV-03780 (SN), 2017 WL
1184305, at *2 (S.D.N.Y. Mar. 29, 2017) (citing Thai v. Cayre Grp., Ltd., 726 F. Supp. 2d 323,
329 (S.D.N.Y. 2010)).
Statements of pure opinion are not defamatory. Grayson v. Ressler & Ressler, 271 F. Supp.
3d 501, 516 (S.D.N.Y. 2017) (citing Small Bus. Bodyguard Inc. v. House of Moxie, Inc., 230 F.
Supp. 3d 290, 315 (S.D.N.Y. 2017)). A court considers four factors when determining whether a
statement is opinion or fact: “(1) whether the specific language at issue has a precise meaning
which is readily understood or whether it is indefinite and ambiguous; (2) whether the statement
is capable of being objectively characterized as true or false; (3) examination of the full context of
the communication; and (4) consideration of the broader social context or setting surrounding the
communication.” Id.
Here, considering those four factors, the Court concludes that Harris’s statement that Jones
“seemed paranoid” is pure opinion and, thus, not actionable. See Scialdone v. Derosa, 48 N.Y.S.3d
471, 472-73 (2d Dep’t 2017) (finding defendant’s statement that plaintiff was a “paranoid
pompous ass” non-actionable opinion). Given the context of the statement and the words used,
Harris is clearly stating that, in his view, Jones appears paranoid. Consequently, the statement is
not actionable. 7
Harris next argues that Jones failed to properly allege the fourth element of her Claim: that
she sustained special damages, or that the defamation is defamation per se. ECF No. 74 at 6-8. A

7

Harris makes two additional arguments against Jones’s Claim: that she did not establish proximate cause and that
Harris’s statements were privileged. Both arguments fail because they are unsupported by law. Alleging proximate
cause is not required to plausibly state a defamation claim, and there is no existing case law of which the Court is
aware stating, or even suggesting, that statements to a mental health crisis center are privileged and not actionable.

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plaintiff incurs special damages when she loses something “having economic or pecuniary value”
that flows “directly from the injury to reputation caused by the defamation.” Id. at 164 (quoting
Celle v. Filipino Reporter Enters., 209 F.3d 163, 179 (2d Cir. 2000)) (quotation marks omitted).
To adequately plead special damages, a plaintiff must state them “fully and accurately . . . with
sufficient particularity to identify actual losses.” Thai, 726 F. Supp. 2d at 330 (quoting Matherson
v. Marchello, 473 N.Y.S.2d 998, 1000-01 (2d Dep’t 1984)). “The particularity requirement is
strictly” enforced. Id. (quoting Emergency Enclosures, Inc. v. Nat’l Fire Adjustment Co., 893
N.Y.S.2d 414, 417 (4th Dep’t 2009)). “Round figures or a general allegation of a dollar amount
will not suffice.” Id. (quoting Nunez v. A-T Fin. Info., Inc., 957 F. Supp. 438, 441 (S.D.N.Y.
1997)) (alterations omitted).
Here, Jones fails to allege any dollar amount, which is insufficient to establish special
damages. She claims only that she was removed from the Panel, from which she derives “the bulk
of her income,” and that she suffers from “humiliation, loss of standing in the community, loss of
self-esteem, public disgrace and severe and emotional distress” because of Harris’s statements.
ECF No. 3 ¶¶ 256-59. Consequently, Jones has failed to allege special damages.
“A plaintiff is excused from pleading special damages, however,” when she pleads
defamation per se, since “the law presumes damages will result” from it. Thorsen v. Sons of
Norway, 996 F. Supp. 2d 143, 165 (E.D.N.Y. 2014) (quoting Liberman v. Gelstein, 80 N.Y.2d
429, 435 (1992)). A plaintiff successfully pleads defamation per se when she alleges statements
that (1) charge her with a serious crime; (2) tend to injure her in her trade, business, or profession;
(3) claim she has a loathsome disease; or (4) impute unchastity to her. Zherka v. Amicone, 634
F.3d 642, 645 n.6 (2d Cir. 2011) (citing Liberman, 80 N.Y.2d at 435). The first, third, and fourth
categories are not at issue in this case, so the Court focuses only on the second: statements that
tend to injure a plaintiff in her trade, business, or profession.
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Statements tend to injure an attorney in her profession when they “show lack of character
or a total disregard of professional ethics, for example, statements that indicate an attorney has
been disloyal to the best interest of his client or statements that accuse an attorney of unprofessional
conduct.” Grayson, 271 F. Supp. 3d at 518 (quoting Wilson v. Tarricone, No. 12 Civ. 5337 (LTS),
2013 WL 12084504, at *4 (S.D.N.Y. Sept. 26, 2013), aff’d, 563 F. App’x 864 (2d Cir. 2014)
(summary order)).
Outside of that general principle, there are three, seemingly-conflicting principles of law
at issue. First, a plaintiff must allege that the statements “referenced her character or conduct in
that profession.” Cain v. Esthetique, 182 F. Supp. 3d 54, 73 (S.D.N.Y. 2016); see also Weinstock
v. Goldstein, 594 N.Y.S.2d 47, 47 (2d Dep’t 1993) (“The allegedly defamatory statements did not
address the subject of the plaintiff’s ability to practice his profession[.]”). Second, statements may
be defamatory if they are spoken “in reference or relation to plaintiff’s profession” and “were
disparaging of [her] mental capacity and competence as a lawyer.” Van Lengen v. Parr, 525
N.Y.S.2d 100, 100-01 (4th Dep’t 1988). Finally, “a false accusation of insanity, mental imbalance,
or mental disease, is [defamation] per se under New York law.” 8 Goldwater v. Ginzburg, 414 F.2d
324, 338 (2d Cir. 1969); see also O’Brien v. Lerman, 498 N.Y.S.2d 395, 396 (2d Dep’t 1986)
(holding that the statement at issue “cannot reasonably be understood by the mind of the ordinary
intelligent reader as imputing to plaintiff insanity or mental instability and, thus, do[es] not
constitute [defamation] per se”).
Here, under the first principle, the statements at issue are not defamation per se because
they do not reference Jones’s character or conduct in the context of her profession. The same is
true for the second principle—the statements were not spoken “in reference or relation” to Jones

8

Admittedly, the quote says “libel per se” and not “defamation” or “slander” per se. The standard for libel per se,
however, is nearly identical to the one for defamation per se. See Davis v. Ross, 754 F.2d 80, 82 (2d Cir. 1985) (“[I]t
is well settled that ‘a writing which tends to disparage a person in the way of his office profession or trade’ is libelous
per se.”). Consequently, the Court finds that any statement that is libel per se is defamation per se.

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as a lawyer; they were spoken to representatives of CSEC in the context of her need for a mental
health evaluation. Under the third principle, however, the statements are defamation per se—they
are allegedly false accusations of insanity, mental imbalance, or mental disease.
Given this conflict, the Court returns to the original analysis: whether the statements tend
to injure Jones in her profession and whether they show lack of character or a total disregard of
professional ethics, for example, statements that accuse Jones of unprofessional conduct.
Here, the statements alleged constitute defamation per se. Harris’s statements that Jones
said she was Harriet Tubman, intended to kill her daughter, consumed large amounts of alcohol,
and took medications prescribed for her dog all tend to injure Jones in her profession, show lack
of character, and accuse her of unprofessional conduct. Indeed, the statements all strongly suggest
that Jones does not have the mental capacity to effectively represent clients in legal matters.
Moreover, stating that Jones intended to kill her daughter and consumed medication prescribed for
her dog suggest a disregard of professional ethics. Accordingly, the Court finds that Jones has
plausibly alleged that the statements constitute defamation per se, thereby plausibly alleging her
Eighth Claim for defamation against Harris.
VII.

Plaintiffs’ Eleventh Claim, the Derivative Spousal Claim, Is Dismissed as to
McCrady, the Physicians, and ECMC
Plaintiffs’ allege the Eleventh Claim, a derivative spousal claim, against all Defendants.

See ECF No. 3 ¶¶ 272-74. It is well established, however, that a spouse’s derivative claim fails as
to a defendant when the other spouse’s principal claims fail. See Wright v. City of Ithaca, 633 F.
App’x 63, 66 (2d Cir. 2016) (citing Griffin v. Garratt-Callahan Co., 74 F.3d 36, 40 (2d Cir. 1996)).
Accordingly, the Eleventh Claim is DISMISSED as to McCrady, the Physicians, and ECMC since
all of Plaintiffs’ principal claims against those Defendants have been dismissed.

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VIII. Plaintiffs Did Not Properly Move to Amend
Plaintiffs twice moved for leave to amend the Amended Complaint. See ECF Nos. 67-1 at
16-17, 75 at 8-9. Under Local Rule of Civil Procedure 15(a), however, Plaintiffs’ Motion is
procedurally improper because it does not include a copy of the proposed Second Amended
Complaint. Loc. R. Civ. P. 15(b) (“A movant seeking to amend or supplement a pleading must
attach an unsigned copy of the proposed amended pleading as an exhibit to the motion.”); see also
Aiola v. Malverne Union Free Sch. Dist., 115 F. Supp. 3d 321, 343 (E.D.N.Y. 2015) (“[A] ‘bare
request to amend a pleading’ contained in a brief, which does not also attach the proposed amended
pleading, is improper[.]”). Consequently, Plaintiffs’ Motion for Leave to Amend the Amended
Complaint is DENIED.
CONCLUSION
For the foregoing reasons, the Motions to Dismiss the Amended Complaint by McCrady,
the Physicians, and ECMC, ECF Nos. 5, 8, 26, 41 are GRANTED, the Claims naming them are
DISMISSED as to them, and the Clerk of Court is directed to terminate them as Defendants in this
case. The Motion to Dismiss the Amended Complaint by Harris, ECF No. 74, is GRANTED IN
PART, and the First, Second, Third, Fourth, Ninth, and Tenth Claims are DISMISSED as to him.
The Court will refer the case to a Magistrate Judge for pretrial proceedings by a separate Order.
The remaining Claims and Defendants are as follows:
The First Claim against CSEC, Sherry W., Mandy M., and R.G.;
The Second Claim against CSEC, Sherry W., Mandy M., R.G., and Buffalo Police Officers
John Doe 1 and 2;
The Third Claim against CSEC, Sherry W., Mandy M., R.G., and Buffalo Police Officers
John Doe 1 and 2;

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The Fourth Claim against CSEC, Sherry W., Mandy M., R.G., and Buffalo Police Officers
John Doe 1 and 2;
The Eighth Claim against Harris; and
The Eleventh Claim against Harris, CSEC, Sherry W., Mandy M., R.G., and Buffalo Police
Officers John Doe 1 and 2.
Finally, Plaintiffs’ Motions for various forms of relief, ECF Nos. 60-61, are DENIED.
IT IS SO ORDERED.
Dated: August 3, 2018
Rochester, New York

______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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