Parker v. United States et al

Filing 75

DECISION AND ORDER granting 26 Motion to Dismiss; granting in part 49 Motion for Summary Judgment; and dismissing all remaining claims without prejudice for lack of jurisdiction. The Clerk of Court is directed to close the case. Signed by Hon. Elizabeth A. Wolford on 03/26/2019. (CDH) (A copy of this Decision and Order was mailed to Plaintiff) -CLERK TO FOLLOW UP-

-—fTled~~~^

MAR 2 6 2019

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RONNIE JOE PARKER,

Plaintiff,
DECISION AND ORDER
V.

6:16-CV-06475 EAW

JOEL D. BLACKERBY,DOUGLAS
TANDY,KIM DEAN,and CLIFTON
SPRINGS HOSPITAL,
Defendants.

INTRODUCTION

Plaintiff Ronnie Joe Parker ("Plaintiff), who was criminally charged with threating
the life of the President of the United States and ultimately acquitted by a jury, brings
various federal and state law claims against the defendants, former United States Secret

Service Special Agent Joel D. Blackerby ("Agent Blackerby"), Clifton Springs Hospital
("CSH"), Dr. Douglas Tandy ("Dr. Tandy"), and registered nurse Kim Dean ("Nurse
Dean")(collectively "Defendants"). (Dkt. 8; Dkt. 9). Currently pending before the Court

are Agent Blackerby's motion to dismiss the claims against him (Dkt. 26) and CSH's, Dr.
Tandy's, and Nurse Dean's (collectively the "CSH Defendants") motion for summary

judgment (Dkt. 49). For the reasons set forth below, the Court grants Agent Blackerby's
motion to dismiss, grants the CSH Defendants' motion for summary judgment with respect

to Plaintiffs federal claims against them, and dismisses Plaintiffs state law claims against
the CSH Defendants without prejudice for lack ofjurisdiction.

-I-

FACTUAL AND PROCEDURAL BACKGROUND

CSH is a private community hospital and nursing home located in Clifton Springs,

New York, (Dkt. 49-2 at ^ 1).' Dr. Landy is a board-certified psychiatrist and has been
employed by CSH for approximately six years. {Id. at ^ 2). Nurse Dean is a registered
nurse and has been the unit coordinator for CSH's inpatient psychiatric unit since April
2011. (Mat 13).

Plaintiff is diagnosed with paranoid schizophrenia. {Id. at 1 4). On February 4,
2014, Plaintiff was transported via ambulance to CSH's emergency room because he was
hearing voices telling him to harm himself and others. {Id. at 16). Plaintiff was admitted
to CSH's inpatient psychiatric unit, where he met with Dr. Landy for an initial inpatient
evaluation. {Id. at H 8-9). Plaintiff told Dr. Landy that he was having auditory
hallucinations commanding him to kill himself and others, including the President of the
United States. {Id. at 19).

Dr. Landy contacted the Secret Service to advise them that "one of his patients had
auditory hallucinations of command to kill then-President Obama." {Id. at f 10). Dr.

Landy spoke to Agent Blackerby, who requested to meet with Plaintiff at CSH the
following morning. {Id. at 111). Dr. Landy advised Plaintiff that a Secret Service Agent

'

The facts pertinent to Plaintiffs claims against the CSH Defendants have been taken

from the CSH Defendants' Local Rule 56 Statement of Undisputed Facts, which is
supported by citations to admissible evidence and to which Plaintiff has failed to file any
opposing statement of facts. See N.Y. State Teamsters Conference Pension & Ret. Fund v.
Express Servs., Inc., 426 F.3d 640, 648(2d Cir. 2005)(under such circumstances, a court
may credit an unopposed statement of facts). As discussed further below, in considering
Agent Blackerby's arguments under Federal Rule of Civil Procedure 12(b)(6), the Court
has limited its consideration to the facts set forth in Plaintiffs Second Amended Complaint.
-2-

would be coming the following morning to speak with him regarding his statement about
the President and Plaintiff indicated that he was agreeable to the meeting, {Id. at ^ 12).
On February 7, 2014, Agent Blackerby met with Plaintiff in a conference room at

CSH's inpatient psychiatric unit. {Id. at Tf 13). Dr. Landy and Nurse Dean were present
for the entirety ofthe meeting. {Id.). After the meeting, Agent Blackerby told Dr. Landy
and Nurse Dean that he would "report his investigative findings to the appropriate
individuals to make a decision regarding whether criminal charges would be pursued
against Plaintiff." {Id. at^ 18). Agent Blackerby also asked to be contacted when Plaintiff
was discharged from CSH. {Id.). Plaintiff was discharged firom CSH on February 28,
2014, and the Secret Service was notified. {Id. at ^ 19).

Plaintiff was indicted on April 10, 2014, for threatening the life ofthe President of
the United States, in violation of 18 U.S.C.§ 871. United States v. Parker,6:14-CR-06045,

Dkt. 11, at *1 (W.D.N.Y. Apr. 10,2014). Plaintiff was alleged to have "told a special agent

of the United States Secret Service that he was going to 'find him (the President) and kill
him...."' Id. Plaintiff was released on bail, but shortly thereafter he violated the

conditions of his pretrial release, his release was revoked, and he was detained until the
conclusion of the trial. See Parker, 6:14-CR-06045, Dkt. 36(W.D.N.Y. Dec. 15, 2014).

A jury trial commenced on September 8, 2015, and Plaintiff was acquitted when the jury
returned its verdict on September 10, 2015. See Parker, 6:14-CR-06045, Dkt. 78
(W.D.N.Y. Sept. 10,2015).
Plaintiff filed this action on July 8, 2016, alleging violations of his constitutional
rights relating to his arrest, incarceration, and prosecution. (Dkt. 1). Plaintiff filed an
-3-

amended complaint on January 10, 2017,(Dkt. 6), and a second amended complaint on
February 14, 2017 (Dkt. 8)(the "Second Amended Complaint"). On April 14, 2017, the
Court entered a Decision and Order screening Plaintiffs Second Amended Complaint
pursuant to 28 U.S.C. § 1915(e)(2). (Dkt. 10). The Court dismissed certain ofPlaintiffs

claims, and permitted the following claims to proceed to service:(1) a false arrest claim
against Agent Blackerby;(2)a First Amendment retaliation claim as to Agent Blackerby,

Dr. Landy, and Nurse Dean;(3) a malicious prosecution claim against Agent Blackerby
and Dr. Landy;(4) a false imprisonment claim against Agent Blackerby, Dr. Landy, and
Nurse Dean; and (5)a negligence/medical malpractice claim against the CSH Defendants.
(Jd. at 7-12).

Agent Blackerby filed his motion to dismiss on December 18, 2017. (Dkt. 26).

Plaintifffiled a declaration opposing Agent Blackerby's motion on January 10,2018(Dkt.
36), and Agent Blackerby filed a reply on January 23,2018(Dkt. 38).
The CSH Defendants filed their motion for summary judgment on April 20, 2018.
(Dkt. 49). Plaintiff filed opposition papers on November 26, 2018. (Dkt. 69). The CSH

Defendants filed a reply on December 20, 2018. (Dkt. 73).
DISCUSSION
I.

Agent Blackerbv's Motion to Dismiss

Agent Blackerby seeks dismissal ofPlaintiffs claims on a number ofgrounds. First,

Agent Blackerby contends that any state common-law tort claims against him are barred
by the Federal Tort Claims Act (the "FTCA"). Second, Agent Blackerby argues that
Plaintiff cannot maintain a First Amendment retaliation claim against him because there is
-4-

no Bivens^ remedy for First Amendment retaliation. Third, Agent Blackerby argues that
Plaintiffcannot maintain a Bivens claim against him in his official capacity. Fourth, Agent
Blackerby argues that Plaintiff has failed to state a claim under Bivens. Fifth, Agent
Blackerby argues that, in any event, he has qualified immunity from Plaintiffs claims.
Sixth and finally. Agent Blackerby contends that he has not been properly served.
For the reasons discussed below, the Court agrees that (1) Plaintiffs state
common-law claims are barred by the FTCA,(2)Plaintiff cannot maintain a Bivens claim
against Agent Blackerby in his official capacity, and(3)Plaintiff has failed to state a viable
Bivens claim. Because these conclusions mandate dismissal ofall Plaintiffs claims against
Agent Blackerby, the Court need not and does not reach Agent Blackerby's remaining
arguments.
A.

State Common-Law Claims

As noted above. Plaintiff has asserted claims against Agent Blackerby for false
arrest, malicious prosecution, and false imprisonment. Such claims generally may be
asserted both as constitutional claims and as state common-law claims. See Crews v. Cty.

of Nassau, 996 F. Supp. 2d 186, 203 (E.D.N.Y. 2014). However, as Agent Blackerby
correctly points out in his motion to dismiss, state common-law claims cannot be brought
against a federal employee acting within the scope of his employment. See Castro v.
United States, 34 F.3d 106,110(2d Cir. 1994)
("[T]he FTCA makes individual government

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388(1971).
-5-

employees immune from common-law tort claims for acts committed within the scope of
their employment[.]").
The "United States, as sovereign, is immune from suit save as it consents to be sued

..., and the terms of its consent to be sued in any court define that court's jurisdiction to
entertain the suit." United States v. Mitchell,445 U.S. 535,538(1980)(quotation omitted).
The FTCA provides a limited waiver of sovereign immunity for claims against the United
States for money damages for injury or loss ofproperty caused by the negligent or wrongful
act or omission of any employee of the Government while acting within the scope of his
or her office or employment. See 28 U.S.C. § 1346(b). Under the FTCA, when a federal

employee is sued for negligence, a United States Attorney determines whether the
employee was acting within the scope of his or her employment, and if so, "the United
States shall be substituted as the party defendant." 28 U.S.C. § 2679(d)(l)-(2); see 28
C.F.R. § 15.4 ("The United States Attorney for the district where the civil action or

proceeding is brought... is authorized to make the statutory certification that the Federal
employee was acting within the scope of his office or employment with the Federal
Government at the time of the incident out of which the suit arose.").

The FTCA applies to false arrest, false imprisonment, and malicious prosecution
claims when they are asserted against "law enforcement officers of the United States

Government," where "law enforcement officer" is defined as "any officer of the United
States who is empowered by law to execute searches, to seize evidence, or to make arrests

for violations of Federal law." 28 U.S.C. § 2680(h); see Murphy v. United States, 121 F.

-6-

Supp. 2d 21, 24 (D.D.C. 2000), affd, 64 F. App'x 250 (D.C. Cir. 2003) (discussing
applicability of § 2680(h)to Secret Service agents).
In this case, the United States Attorney for the Western District of New York has
certified that Agent Blackerby was acting within the scope ofhis employment with respect
to Plaintiffs claims. (Dkt. 30). Accordingly, the United States must be substituted in as
the sole defendant with respect to these claims and they must be construed pursuant to the
FTCA.

"The FTCA requires that a claimant exhaust all administrative remedies before

filing a complaint in federal district court. This requirement is jurisdictional and cannot be

waived." Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82(2d Cir.
2005); see 28 U.S.C. § 2675(a)(a claimant cannot commence an action under the FTCA
"unless the claimant shall have first presented the claim to the appropriate Federal agency
and his claim shall have been finally denied by the agency in writing"). In this case.

Plaintiff has not alleged that he filed an administrative tort claim with the United States

Secret Service related to Agent Blackerby's actions,^ and Lanelle Hawa, the Assistant to

^

Plaintiff does seem to indicate that he attempted to file an administrative tort claim

with the Federal Bureau ofPrisons(the "BOP")related to an incident that occurred during
his transport to a court-ordered competency hearing. {See Dkt. 36 at T[ 3). It is not clear
from Plaintiffs submissions whether he ever presented the claim to the BOP. However,
"[t]o adequately present a claim to an agency, a Notice of Claim ... must provide enough

information to permit the agency to conduct an investigation and to estimate the claim's
worth. A claim must be specific enough to serve the purpose of the FTCA to enable the
federal government to expedite the fair settlement of tort claims." Palmer-Williams v.
United States, 675 F. App'x 70, 71 (2d Cir. 2017)(quotation omitted). Submission of a
claim related to a transport injury cannot reasonably be said to have put the United States
on notice of claims for false arrest, false imprisonment, and malicious prosecution related
to the underlying criminal prosecution.

the Special Agent in Charge of the United States Secret Service Investigative Support
Division, has submitted a sworn declaration stating that no such administrative tort claim

has been filed. {See Dkt. 28).'* Nor could Plaintiff timely file an administrative tort claim
at this point. See 28 U.S.C. § 2401(b)("A tort claim against the United States shall be
forever barred unless it is presented in writing to the appropriate Federal agency within two
years after such claim accrues[.]"). The latest any of Plaintiffs claims accrued is
September 10, 2015, the date he was acquitted and released from custody, and Plaintiff
"has demonstrated neither reasonable diligence nor extraordinary circumstances" so as to
warrant equitable tolling. Palmer-Williams v. United States,675 F. App'x 70,71 (2d Cir.
2017).

In sum. Plaintiffs state common-law claims against Agent Blackerby must be
construed as claims against the United States under the FTCA,and the Court lacks subject
matterjurisdiction over such claims because Plaintiffhas failed to comply with the FTCA's
administrative requirements. The Court therefore finds that Plaintiffs state common-law
claims arising out of Agent Blackerby's actions must be dismissed.

"Although courts are generally limited to examining the sufficiency ofthe pleadings
on a motion to dismiss, on a challenge to a district court's subject matter jurisdiction, the
court may also resolve disputed jurisdictional fact issues by reference to evidence outside
the pleadings." Licci by Licci v. Lebanese Canadian Bank, SAL, 834 F.3d 201, 211 (2d
Cir. 2016). Because the FTCA's administrative exhaustion requirement is jurisdictional,
it is appropriate for the Court to consider Ms. Hawa's declaration. See Fountain v. Karim,
838 F.3d 129, 134(2d Cir. 2016). For the same reason, it is appropriate to consider the
certification that Agent Blackerby was acting within the scope of his employment. {See
Dkt. 30).
-8-

B.

Bivens Claims Against Agent Blackerbv

The Court next considers Plaintiffs Bivens claims against Agent Blackerby. In
Bivens, the Supreme Court "recognized for the first time an implied private action for

damages against federal officers alleged to have violated a citizen's constitutional rights."
Corr. Servs. Corp. v. Malesko,534 U.S.61,66(2001). "The purpose ofthe Bivens remedy
is to deter individual federal officers from committing constitutional violations." Arar v.
Ashcroft, 585 F.3d 559, 571 (2d Cir. 2009)(quotation omitted). Agent Blackerby seeks
dismissal ofall Plaintiffs

claims against him under Federal Rule ofCivil Procedure

12(b)(6)for failure to state a cognizable claim. For the reasons discussed below,the Court

finds dismissal ofPlaintiffs Bivens claims against Agent Blackerby is warranted.
1.

Legal Standard

"In considering a motion to dismiss for failure to state a claim pursuant to Rule
12(b)(6), a district court may consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents incorporated by reference in the
complaint." DiFolco v. MSNBC Cable LLC,622 F.3d 104, 111 (2d Cir. 2010). A court

should consider the motion by "accepting all factual allegations as true and drawing all
reasonable inferences in favor ofthe plaintiff." Trs. of Upstate N.Y. Eng'rs Pension Fund
V. Ivy Asset Mgmt,843 F.3d 561, 566(2d Cir. 2016), cert, denied, 137 S. Ct. 2279(2017).

To withstand dismissal, a claimant must set forth "enough facts to state a claim to relief
that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A
claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged."
-9-

Turkmen v. Ashcroft,589 F.3d 542,546(2d Cir. 2009){(\\xo\mgAshcrofiv. Iqbal, 556 U.S.
662,678(2009)).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss docs not need

detailed factual allegations, a plaintiffs obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal
quotations and citations omitted). "To state a plausible claim, the complaint's '[f]actual
allegations must be enough to raise a right to relief above the speculative level.'" Nielsen

V. AECOMTech. Corp., 762 F.3d 214,218(2d Cir. 2014)(quoting Twombly, 550 U.S. at
555).
2.

Official Capacity Claims

As a threshold matter, the Court agrees with Agent Blackerby that, to the extent

Plaintiff is attempting to assert a Bivens claim against him in his official capacity, such
claim must fail. The Second Circuit has explained:
[A Bivens action] must be brought against the federal officers involved in
their individual capacities. Under the doctrine of sovereign immunity, an
action for damages will not lie against the United States absent consent.
Because an action against a federal agency or federal officers in their official
capacities is essentially a suit against the United States, such suits are also
barred under the doctrine of sovereign immunity, unless such immunity is
waived.

Robinson v. Overseas Military Sales Corp., 21 F.3d 502,510(2d Cir. 1994). To the extent

Plaintiffis seeking to assert a Bivens claim against Agent Blackerby in his official capacity,
that claim is not viable and must be dismissed.

10-

3.

Individual Capacity Claims

Plaintiff has asserted claims against Agent Blackerby for First Amendment

retaliation, false arrest, false imprisonment, and malicious prosecution. Agent Blackerby
contends that these claims are not viable because they each "contain[] [lack of] probable
cause as an essential element" and Plaintiff cannot overcome the presumption of probable

cause established by a magistrate judge having signed an arrest warrant and a grand jury
having returned an indictment. (Dkt. 31 at 18-19).

With respect to Plaintiffs malicious prosecution, false arrest, and false
imprisonment claims, it is clear that a lack ofprobable cause is an essential element ofeach

ofthese claims. "Claims for false arrest, whether brought under § 1983,pursuant to Bivens,
or under state law, are analyzed pursuant to the same standards as the applicable state law's

false arrest tort." Nzegwu v. Friedman,605 F. App'x 27, 29(2d Cir. 2015). "Under New
York law, false arrest is considered to be a species of false imprisonment, and the two
claims have identical elements." Mejia v. City ofN.Y., 119 F. Supp.2d 232,252(E.D.N.Y.
2000). In particular, a plaintiffclaiming false arrest or false imprisonment must show "that
(1) the defendant intended to confine him, (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. Ifan officer has probable cause to arrest, the confinement is

privileged." Nzegwu,605 F. App'x at 29(citation and quotation omitted). Similarly,"[t]he
Second Circuit has held that New York law pertaining to probable cause is the controlling
standard for a Bivens action for malicious prosecution" and "[t]he existence of probable

cause is a complete defense to a claim of malicious prosecution in New York." Bey v.
- 11 -

Fernandez, No. 15CV7237PKCST, 2018 WL 4259865, at *6 (E.D.N.Y. Sept. 5, 2018)
(citations and quotations omitted).

The law with respect to probable cause and First Amendment retaliation claims is
less well-settled. Until recently, "the law of the Second Circuit made clear that a claim

for retaliatory arrest required a plaintiff to show the absence of probable cause to support
the arrest." Fowler v. City ofStamford, No. 3:18-CV-01498(JAM),2019 WL 188695, at

*4 (D. Conn. Jan. 14, 2019)(citing Curley v. Vill. ofSufern, 268 F.3d 65, 73 (2d Cir.
2001)); see also Caravalho v. City ofN.Y., 732 F. App'x 18, 23 (2d Cir. 2018)("The
existence of probable cause defeats a First Amendment claim premised on the allegation
that defendants arrested a plaintiff based on a retaliatory motive."). However, "more

recently the validity ofthat rule has been called into question." Fowler,2019 WL 188695,
at *4. In particular, the Supreme Court's recent decision in Lozman v. City ofRiviera

Beach,Fla., 138 S.Ct. 1945,201 L.Ed.2d 342(2018), held "that a plaintiff may prevail on
a civil claim for damages for First Amendment retaliation for an arrest made pursuant to a

retaliatory official municipal policy, even if there was probable cause for the arrest, if the

alleged constitutional violation was a but-for cause ofthe arrest...[b]ut... left open the
question of whether [that ruling] applies where, as here, the defendants are individual
police officers, rather than a municipality." Higginbotham v. Sylvester, 741 F. App'x 28,

31 (2d Cir. 2018)(declining to reach the issue). Lozman thus leaves open the possibility
that probable cause may not be a defense to a First Amendment retaliatory arrest claim in
all cases.

12-

However, the Court agrees with other courts that have considered the issue and

concluded that "regardless whether the rule for retaliatory arrests may change in the
future," individual defendants like Agent Blackerby are "protected by qualified immunity
for conduct that did not violate clearly established law at the time oftheir actions." Fowler,
2019 WL 188695, at *4; see also Galarza v. Monti, 327 F. Supp. 3d 594, 605 (S.D.N.Y.

2018)
("An arresting officer is protected by qualified immunity from a lawsuit challenging
an arrest as retaliatory where the arrest was supported by probable cause[.]"). Qualified
immunity applies where a defendant's actions "did not violate clearly established statutory
or constitutional rights of which a reasonable person would have known." Benitez v. Woljf,

985 F.2d 662,666(2d Cir. 1993)(quotation omitted). Here, assuming that probable cause
existed, a reasonable person could not have possibly known in 2014 when Plaintiff was

arrested that Agent Blackerby's alleged actions constituted impermissible First
Amendment retaliation, because the existing case law held to the contrary. Accordingly,

the existence of probable cause is fatal to Plaintiffs First Amendment retaliation claim, as
well as his other Bivens claims.

Agent Blackerby is also correct that there is a presumption of probable cause in this
case. A magistrate judge signed an arrest warrant for Plaintiff and a grand jury returned an
indictment as to him, both of which give rise a presumption of probable cause. See Savino

V. City ofN.Y., 331 F.3d 63, 72 (2d Cir. 2003)("[Ijndictment by a grand jury creates a
presumption of probable cause that may only be rebutted by evidence that the indictment
was procured by fraud, perjury, the suppression of evidence or other police conduct
undertaken in bad faith.")(quotation omitted); Alcantara v. City ofN.Y., 646 F. Supp. 2d
- 13-

449,460(S.D.N.Y. 2009)("The return ofthe indictment against the plaintiff by the grand
jury, and the signing ofa valid warrant for the plaintiffs arrest by a magistrate judge, each
created a presumption of probable cause.").
"District courts have not hesitated to dismiss . . . claims that fail to rebut the

presumption of probable cause that arises from a grand jury indictment." Lacey v. Yates
Cty., 30 F. Supp. 3d 213, 224 (W.D.N.Y. 2014) (collecting cases). In particular,

"conclusory allegations"that"the defendant officers must have fabricated evidence in light

of the plaintiffs version of the events and his ultimate acquittal ... are insufficient to
counter the presumption of probable cause, and to allow a court to draw the reasonable
inference that the grand jury's indictment was a result offraud or other misconduct." Lewis
V. City ofN.Y, 591 F. App'x 21, 22 (2d Cir. 2015)(affirming dismissal of malicious

prosecution claim). In this case. Plaintiff has alleged without elaboration that Agent
Blackerby provided the grand jury with "false information" and took Plaintiffs words "out
of context" without adequately considering Plaintiffs mental state. (See Dkt. 8 at 4-5).

These are precisely the sort of conclusory allegations that courts in this Circuit have
consistently found insufficient to rebut a presumption of probable cause. See, e.g., Hadid

V. City ofN.Y.,130V. App'x 68,71 (2d Cir. 2018)
("We have routinely affirmed dismissals
of malicious prosecution claims at the pleading stage where the plaintiffhas failed to allege
facts sufficient to rebut the presumption of probable cause flowing from a grand jury

indictment."); Jenkins v. Cty. of Washington, 126 F. Supp. 3d 255, 278 (N.D.N.Y. 2015)

(conclusory allegation that defendant knowingly presented false evidence to grand jury
insufficient to overcome presumption ofprobable cause at motion to dismiss stage); Stakes
- 14-

V. City ofN.Y., No. 13-CV-6166 NGG WP,2015 WL 1246542, at *6(E.D.N.Y. Mar. 17,
2015)(conclusory allegation that a defendant presented "false facts" to the grand jury was
insufficient to "plausibly suggest that his grand jury indictment was procured by fraud,
perjury, the suppression of evidence, or other bad faith police conduct").
The Court finds that Plaintiffs allegations do not "allow [the Court] to draw the

reasonable inference that the grand jury's indictment [or the magistrate judge's signing of
the arrest warrant] was a result of fi*aud or other misconduct." Lewis, 591 F. App'x at 22.
As such. Plaintiff cannot maintain his Bivens claims against Agent Blackerby in his
individual capacity.

For the reasons discussed above,the Court finds that all ofPlaintiffs claims against
Agent Blackerby are subject to dismissal. Accordingly, Agent Blackerby's motion to
dismiss is granted.
II.

The CSH's Defendants' Motion for Summary Judgment

The Court turns next to the CSH Defendants' motion for summary judgment. The
CSH Defendants contend that they are entitled to summary judgment as to Plaintiffs
federal constitutional claims because they are not state actors. They further argue that there
are no genuine issues of material fact with respect to any of Plaintiffs claims. For the
reasons discussed below, the Court agrees that Plaintiff cannot maintain a federal
constitutional claim against the CSH Defendants. The Court further finds that, under these
circumstances, it should not exercise supplemental jurisdiction over Plaintiffs state law
claims against the CSH Defendants.

15-

A.

Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment
should be granted if the moving party establishes "that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ.

P. 56(a). The Court should grant summary judgment if, after considering the evidence in
the light most favorable to the nonmoving party, the court finds that no rational jury could
find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007)(citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586-87(1986)).

"The moving party bears the burden ofshowing the absence of a genuine dispute as
to any material fact. .. ." Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486
(2d Cir. 2014). "Where the non-moving party will bear the burden of proof at trial, the
party moving for summary judgment may meet its burden by showing the evidentiary
materials of record, if reduced to admissible evidence, would be insufficient to carry the

non-movant's burden of proof at trial." Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103
(W.D.N.Y.2011)(citing Celotex Corp. v. Catrett, All U.S. 317,322-23(1986)). Once the

moving party has met its burden, the opposing party "must do more than simply show that
there is some metaphysical doubt as to the material facts, and may not rely on conclusory
allegations or unsubstantiated speculation." Robinson v. Concentra Health Servs., Inc.,
781 F.3d 42, 44(2d Cir. 2015)(quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d

Cir. 2011)). Specifically, the non-moving party "must come forward with specific
evidence demonstrating the existence of a genuine dispute of material fact." Brown,654
F.3d at 358. Indeed, "the mere existence of some alleged factual dispute between the
- 16-

parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby,
Inc., All U.S. 242,247-48 (1986).
B.

PlaintifPs Federal Constitutional Claims as to the CSH Defendants

Plaintiff has asserted both federal constitutional claims and state law claims against

the CSH Defendants. The CSH Defendants argue, and the Court agrees, that Plaintiffs
federal constitutional claims against the CSH Defendants cannot survive summary

judgment because the CSH Defendants are not state actors.
"Because the United States Constitution regulates only the Government,not private

parties, a litigant claiming that his constitutional rights have been violated must first
establish that the challenged conduct constitutes state action." United States v. Int'l Bhd.

of Teamsters, Chauffeurs, Warehousemen & Helpers ofAm., AFL-CIO, 941 F.2d 1292,
1295 (2d Cir. 1991)(internal quotation omitted). Private hospitals (and their employees)
are generally not considered state actors. See Doe v. 201 Rosenberg, 996 F. Supp. 343,

356(S.D.N.Y. 1998). However,"[tjhere are three exceptional circumstances wherein state
actor status is conferred" on a hospital:(1) when there is a nexus or joint action between
the state and the hospital;(2)when the hospital acts under state compulsion; and(3)when
the hospital's provision of services constitutes a public function. Sykes v. McPhillips, 412

F. Supp. 2d 197, 200-01 (N.D.N.Y. 2006). None ofthese exceptions applies here.
First, the fact that Plaintiff was held at CSH for involuntary inpatient psychiatric
care does not establish state action. See McGugan v. Aldana-Bernier, 752 F.3d 224, 229

- 17

(2d Cir. 2014)("[P]rivate health care professionals and a private hospital did not engage in
state action when they involuntarily committed [a plaintiff] to the psychiatric ward[.]")Second, Dr. Landy's report of Plaintiffs statements to the Secret Service also does

not constitute state action. See Ginsberg v. Healey Car & Truck Leasing, Inc., 189 F.3d
268, 272 (2d Cir. 1999)(providing information to law enforcement does not constitute
action under color oflaw)(collecting cases);see also Anilao v. Spota,11A F. Supp. 2d 457,
503(E.D.N.Y.2011)("[RJeporting suspected criminal activity to law enforcement or other

government officials is not sufficient to render a private party a 'state actor.'").
Third, the CSH Defendants are not liable for the alleged violation of Plaintiffs
rights because they allowed Agent Blackerby to meet with Plaintiff while he was in their

care. The record shows that Plaintiff consented to the meeting and Plaintiff has failed to

produce or identify any evidence to controvert that conclusion. {See Dkt. 49-7 at 15
(testimony by Agent Blackerby that Plaintiff was told that the interview was voluntary and
he was free to leave at any time); Dkt. 49-8 at 2 (contemporaneous medical records

indicating Plaintiff agreed to speak with Agent Blackerby)).
Moreover, even assuming that Plaintiff was unwilling to meet with Agent
Blackerby, it is undisputed that Plaintiff was already being held by CSH for legitimate
medical reasons at the time he met with Agent Blackerby. In Kia P. v. Mclntyre, 235 F.3d
749(2d Cir. 2000), the Second Circuit held that where a hospital is holding a patient "as a

private actor providing medical care," it is not liable for constitutional violations even if it
thereafter also detains the patient for governmental purposes. Id. at 757 (finding that a
hospital, even if considered a state actor, was "incapable of depriving . . [a patient] of
- 18-

liberties that had already been taken away by the Hospital's medical staff as private,
professional persons"). In other words, even assuming that the CSH Defendants were
detaining Plaintifffor law enforcement purposes during the meeting with Agent Blackerby,
they were also holding him for medical treatment purposes during that time, and therefore
cannot be said to have unconstitutionally seized him or deprived him of his liberty.
Plaintiff has failed to identify any other basis on which the CSH Defendants could

be considered state actors or held liable for the alleged deprivation of his constitutional
rights. Accordingly, the CSH Defendants are entitled to summary judgment on Plaintiffs
federal constitutional claims.
C.

State Law Claims Against CSH Defendants

Having determined that all of Plaintiffs claims against Agent Blackerby and all of
Plaintiffs federal claims against the CSH Defendants are not viable, the Court considers

whether it should continue to exercise supplemental jurisdiction over Plaintiffs state law
claims against the CSH Defendants and concludes that it should not.
Supplemental jurisdiction "is a doctrine of flexibility, designed to allow courts to
deal with cases involving pendant claims in the manner that most sensibly accommodates
a range of concerns and values." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350
(1988). The Court's exercise ofthis discretion is governed by 28 U.S.C.§ 1367("§ 1367"):

[l]n any civil action ofwhich the district courts have originaljurisdiction, the
district courts shall have supplemental jurisdiction over all other claims that
are so related to claims in the action within such original jurisdiction that

they form part ofthe same case or controversy under Article 111 ofthe United
States Constitution. Such supplemental jurisdiction shall include claims that
involve the joinder or intervention of additional parties.

- 19-

28 U.S.C. § 1367(a). Under § 1367(c):

The district courts may decline to exercise supplemental jurisdiction over a
claim under subsection(a)if—

(1)

the claim raises a novel or complex issue of State law,

(2)

the claim substantially predominates over the claim or claims over
which the district court has original jurisdiction,

(3)

the district court has dismissed all claims over which it has original
jurisdiction, or

(4)

in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.

Id. § 1367(c). "[T]he discretion implicit in the word 'may' in subdivision (c) of § 1367

permits the district court to weigh and balance several factors ...." Purgess v. Sharrock,
33 F.3d 134,138(2d Cir. 1994). After dismissing all federal claims,the district court must
"reassess its jurisdiction over the case by considering ...judicial economy, convenience,
fairness, and comity." Motorola Credit Corp. v. Uzan, 388 F.3d 39, 56 (2d Cir. 2004).

"[DJismissal ofpendent state law clainls under such circumstances is generally appropriate,
as [njeedless decisions of state law should be avoided both as a matter of comity and to

promote justice between the parties, by procuring for them a surer-footed reading of
applicable law." Ross v. Woods,412 F. App'x 392, 393(2d Cir. 2011)(quotation omitted
and second alteration in original).
In this case, the Court has dismissed all the claims over which it has original

jurisdiction. The Court lacks original subject matterjurisdiction over the remaining claims
because there is no diversity of citizenship between the parties. See 28 U.S.C. § 1332.
Upon consideration of all relevant factors, the Court declines to exercise jurisdiction over
-20-

Plaintiffs state law claims against the CSH Defendants. "[I]f the federal claims are
dismissed before trial, even though not insubstantial in a jurisdictional sense, the state
claims should be dismissed as well." Purgess, 33 F.3d at 138(quotation omitted);see also
Valencia ex rel. Franco v. Lee,316 F.3d 299,305(2d Cir. 2003)
(where "federal law claims
are eliminated before trial, the balance of factors to be considered under the pendent
jurisdiction doctrine—judicial economy, convenience, fairness, and comity—^will point
toward declining to exercise jurisdiction over the remaining state-law claims"). Any

discovery the parties have completed can be used in any subsequent state court proceeding.
And, given this Court's significant civil and criminal dockets, the parties may be better
served by a state court which can finally decide the state law claims in a timely and efficient
manner.

The dismissal of Plaintiffs state law claims is without prejudice. See JetBlue
Airways Corp. v. CopyTele Inc., 629 F. App'x 44,45(2d Cir. 2015)(dismissal for lack of
subject matter jurisdiction must be without prejudice). Moreover, under 28 U.S.C.
§ 1367(d), the statute of limitations for Plaintiffs state law claims has been tolled while

the instant action was pending and shall be tolled for a period of 30 davs after dismissal.
In order to pursue his remaining state law claims. Plaintiff must file a state court action
within the applicable time period.
CONCLUSION

For the foregoing reasons, the Court grants Agent Blackerby's motion to dismiss
(Dkt. 26), grants the CSH Defendants' motion for summary judgment (Dkt. 49) as to
Plaintiffs federal claims,and declines to exercise supplementaljurisdiction over Plaintiffs
-21 -

state law claims against the CSH Defendants, which are hereby dismissed without
prejudice. The Clerk of Court is directed to close^lTi?^se.
SO ORDERED.

ELIzIbEtoZ^W0EFORD
Unkdd States District Judge
Dated: March 26, 2019
Rochester, New York

-22-