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according the defendants' professional medical judgment a presumption of correctness
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99 Civ. 4603 (SAS)
August 20, 2001
Plaintiff (pro se)
Jonathan Birenbaum, Assistant Attorney General of the State of New York for defendants
OPINION AND ORDER
Pro se plaintiff Scott Lombardo, a former patient at Kirby Forensic Psychiatric Center ("Kirby"), is suing Secure Health Treatment Aid ("SHTA") Paula Crescent, SHTA Gerald Greene, SHTA Frank Burgos, SHTA Carlos Rosario, Registered Nurse Romy Rousseau, James Stone — the Commissioner of the New York State Office of Mental Health, Dr. Renate Wack — the former Executive Director of Kirby, and Kin Wah Lee — the Director of Quality Assurance at Kirby. Plaintiff brings this suit under 42 U.S.C. § 1983 alleging various violations of his constitutional rights. Pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, defendants move for summary judgment on all of plaintiff's claims. For the reasons stated below, defendants' motion is granted in its entirety with respect to Stone, Wack and Lee and is granted in part and denied in part as to all other defendants.
I. BACKGROUND
A. Lombardo's Assault on Reede
Plaintiff's allegations arise out of a string of incidents that occurred while plaintiff was a patient at Kirby. At approximately 3:50 a.m. on January 4, 1998, plaintiff became irrationally angry with SHTA Pamela Reede because, in his words "she was giving me a bunch of shit."
Deposition of Scott Lombardo ("Lombardo Dep."), Ex. B to 3/8/01 Affidavit of Assistant Attorney General Jonathan Birenbaum ("Birenbaum Aff."), at 70. The parties do not dispute that plaintiff attacked Reede when her back was turned and choked her until she lost consciousness. See id. at 69-72. Staff members and security personnel quickly subdued Lombardo and took him to the seclusion room where he was placed in a five-point restraint. See id. at 73-77.
Plaintiff was accused of attempted first degree rape, attempted second degree assault, and third degree assault. See Deposition of New York State Safety Officer Kenneth Young, Ex. N to Birenbaum Aff., at 1. Lombardo pled guilty to attempted second degree assault and was sentenced to one to three years imprisonment. See Defendant's Rule 56.1 Statement ("Def. 56.1") ¶ 30.
B. Lombardo's Time in Restraints
After the assault on SHTA Reede, plaintiff was placed in a bed and restrained. See Lombardo Dep. at 92-93.
In plaintiff's words, "as I was being restrained, I heard Paula Crescent say, `I saw it, I saw what you did. You struck Mr. Burgos; understand, okay?' Like she was giving them [sic] an order." Id. at 93. Lombardo was wheeled into the seclusion room where he alleges that Greene told him "[y]ou're going to get this all week long." Id. at 95.
While restrained, plaintiff received range of motion exercises at fairly regular intervals. For example, on January 4, plaintiff received range of motion exercises at 6:00 a.m., 11:15 a.m., 12:45 p.m., 2:30 p.m., 4:00 p.m., 6:00 p.m., 9:15 p.m. and 11:15 p.m. See Med. Rec. at 1138-40. Plaintiff claims, and the medical records reflect, that he did not receive range of motion exercises after 11:15 p.m. on January 4 until 6:00 a.m. on January 5. See id. at 1140.
It is undisputed that later in the morning of January 4, at approximately 4:30 a.m., SHTA Doeman brought plaintiff a urinal and allowed him to urinate. See id. at 101-02. Defendants contend that plaintiff was toileted at 7:00 a.m. However, plaintiff denies being toileted at this time and defendants' records concerning this assertion are vague. See id. at 102-04. Plaintiff claims that at about 8:00 a.m. he asked for a urinal. See id. at 79-80. He contends that his request was ignored and, at approximately 8:20 a.m., he urinated on himself. See id.
An SHTA whose name has been redacted wrote that patient was toileted at 7:00 a.m. See Kirby Medical Records ("Med. Rec."), Ex. F to Birenbaum Aff., at 1130. As plaintiff points out, the Patient Monitoring Form does not contain any entries for 7:00 a.m. See id. at 1139-1140.
Defendants claim that plaintiff did not give staff adequate advance warning of the problem, and the accident was caused "because [Lombardo] could not wait." Def. 56.1 ¶ 14. At 11:15 a.m., Lombardo, who had been lying in his own urine for approximately three hours, informed Crescent of his predicament. See Lombardo Dep. at 81. Plaintiff alleges that Crescent responded with the words "fuck you." Id.
Lombardo was then medicated and, at approximately 12:30 p.m., given a cup of water. See id. at 98-99; Def. 56.1 24. The medication caused plaintiff to sleep for much of the time. See id. Sometime during the evening of January 4, 1998, plaintiff claims he informed Rousseau that he had to use the bathroom. See id. at 100. She allegedly responded "you get nothing" and left the seclusion room. Id. Lombardo claims to have subsequently urinated on himself again. See id. at 101. Plaintiff's medical records indicate that he refused a urinal three times between 3:00 p.m. and 11:00 p.m. on January 4 and make no mention of plaintiff urinating on himself during that time period. See Med. Rec. at 1131-34. Plaintiff admits that he was given an Ensure dietary supplement around 12:15 a.m. on January 5, 1998. See Lombardo Dep. at 103-04. Plaintiff also admits that he drank half a cup of water with the Tylenol given to him at 12:30 p.m. on January 4, 1998. See id. at 104. Defendants contend that plaintiff was hydrated several times. See Def. Mem. at 12-14. They further contend that he repeatedly refused food and water and that his behavior was such that it was unsafe to attempt to feed him. See id. Plaintiff remained in restraints until approximately 2:30 p.m. on January 5 when he was allowed to shower and change his clothes before being placed in padded restraints. See Lombardo Dep. at 104-05. At approximately 4:30 p.m., the state police took him into custody. See Def. 56.1 ¶ 28.
C. The Alleged Assault of Lombardo by Kirby Staff
Shortly thereafter, Greene, Burgos, and Rosario released plaintiff from his restraints and escorted him to the shower room so that he could wash himself. See id. at 81-85. After showering, Lombardo was escorted back to the seclusion room by Greene, Burgos and Rosario while Crescent watched. See id. at 84-86. According to plaintiff, Burgos suddenly grabbed him from behind. See id. at 87-88. Burgos allegedly choked plaintiff to the point where plaintiff nearly lost consciousness and then dropped him to the ground. See id. Plaintiff claims that Greene, Burgos and Rosario proceeded to kick and "stomp" him for approximately five to ten minutes as he lay on the ground. See id. at 87-91. During the beating, Greene allegedly admonished plaintiff "you don't do this to a [SH]TA." Id. at 93.
Plaintiff claims that he drank water from the showerhead. See Complaint ¶ 18.
According to plaintiff, Greene, Burgos, and Rosario continued to kick him until just moments before security officers arrived. See id. at 90-92.
Defendants' version of events is different from plaintiff's. According to defendants, plaintiff was walking back from the shower room when, without provocation, he suddenly turned around and punched Burgos in his left temple. See Deposition of Frank Burgos ("Burgos Dep."), Ex. K to Birenbaum Aff., at 22, 26, 29. Defendants presented substantial corroborating evidence of Burgos' claimed injuries. See id. at 20-23, 29-30. Specifically, Burgos suffered a head injury, a shoulder injury, and a knee injury. See id. As a result of these injuries, Burgos was unable to work for approximately five months and received Workers Compensation. See 10/29/99 Workers Compensation Board form of Frank Burgos, Ex. L to Birenbaum Aff., at 2; 5/6/98 Letter from Renate Wack to Frank Burgos, Ex. L to Birenbaum Aff.
Defendants also contend that Lombardo's injuries are much more consistent with reasonable restraint than with assault. See Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment ("Def. Mem.") at 16.
Defendants' records indicate that plaintiff sustained
slight swelling and hematoma (bluish discoloration) over the nasal bridge and in between the eyebrows . . . five scratches over [Lombardo's] shoulder . . . small hematoma over midback . . . no swelling, no limitation of movement . . . [n]o difficulty of breathing through nose, no bleeding.
A hematoma is defined as "a tumor or swelling containing blood." Webster's Ninth New Collegiate Dictionary 563 (9th ed. 1987) ("Webster's").
The reporting nurse's handwriting was unclear and in the bulk of their materials defendants contend that she wrote "fine" instead of "five." In their 56.1 statement, defendants contend that plaintiff suffered "line" scratches. Def. 56.1 ¶ 24.
Med. Rec. at 1117-18. A later document refers to an "erythema over his upper back" that appeared around the time of the alleged assault. 2/27/98 Memorandum of Maryse Chardonet, Treatment Team Leader ("Chardonet Mem."), Ex. R to Birenbaum Aff., at 2.
An erythema is defined as an "abnormal redness of skin due to capillary congestion (as in inflammation)." Webster's at 423.
Chardonet investigated plaintiff's complaint and wrote:
[t]he injuries sustained by pt. Lombardo on his back and one shoulder are more consistent with his being accidentally scratched by his being combative during applications of restraints, his agitating himself while in the restraints, trying to get out of the restraints, and the first time he was in restraints having been naked . . . They were not, however, consistent with being `yoked, thrown down to the ground, kicked and stomped,' by three men.
Id. at 3-4. The erythema was explained as having possibly been caused by Lombardo "lying on his back." Id. at 2. The explanation for the nose injury was that plaintiff was "out of control and [had] to be restrained." Id. at 4.
D. Lee's Involvement
Lee was Director of Quality Assurance at Kirby when the incidents in question occurred. See Def. 56.1 ¶ 31. Plaintiff alleges that during a phone call from Rikers Island, he asked Lee to preserve the security video footage of the room where the alleged beating occurred. See Lombardo Dep. at 92, 116; Plaintiff's Answer to Defendant's [sic] Motion for Summary Judgment ("Pl. Resp.") at 6-7. Lee denies that plaintiff made this request. See Telephonic Deposition of Kin Wah Lee ("Lee Dep."), Ex. P to Birenbaum Aff., at 14. E. Dr. Wack's Involvement
Dr. Wack was the Executive Director of Kirby when the events in question occurred. See Def. 56.1 ¶ 31. Her only direct involvement in the case occurred when she reviewed a report of plaintiff's allegations and declined to take action. See Deposition on Written Interrogatories of Renate Wack ("Wack Dep."), Ex. Q to Birenbaum Aff., at 3-5, 8.
F. Stone's Involvement
Stone is the Commissioner of the New York State Office of Mental Health. See Def. 56.1 ¶ 31. Plaintiff notes that section 45.07 of the New York Mental Hygiene Law obligates the Commission on Quality Care to "[m]ake findings concerning matters referred to its attention and, where it deems appropriate, make a report and recommendations. Such report shall be delivered to the commissioner and the director of the facility involved." N.Y. Mental Hyg. Law § 45.07 (McKinney 2001). Plaintiff contends that Stone "had notice of prior occurrences which should have alerted defendants to the necessity of closer supervision or better training of their subordinates." Pl. Resp. at 8.
II. LEGAL STANDARD
A motion for summary judgment may be granted only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Clorox Co. v. Sterling Winthrop, Inc., 117 F.3d 50, 55 (2d Cir. 1997). The moving party has the burden of identifying the absence of any genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997).
Once the moving party has satisfied this burden, the opposing party must produce sufficient evidence that a reasonable jury could return a verdict in its favor, identifying "specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); see also Gonzalez v. City of New York, No. 99 Civ. 9128, 2000 WL 1678036, at *3 (S.D.N.Y. Nov. 8, 2000).
The Second Circuit has recently summarized this standard: "genuineness runs to whether disputed factual issues can `reasonably be resolved in favor of either party,' materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)). In determining whether summary judgment should be granted, the court must resolve all ambiguities and draw all inferences in favor of the non-moving party. See Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 721 (2d Cir. 1994).
Ultimately, "[a] court may grant summary judgment only when no rational jury could find in favor of the non-moving party." D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998).
The papers of a party proceeding pro se should be read liberally and interpreted "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quotation marks and citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520 (1972). However, a pro se party's bald assertions, if unsupported by evidence, are not sufficient to overcome a motion for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).
III. DISCUSSION
A. Lombardo Fails to State a Valid Claim Under the New York Mental Hygiene Law Plaintiff alleges "[t]he actions of defendants . . . violated state Mental Hygiene Law." Complaint ¶ 25. However, "[t]he Mental Hygiene Law is a regulatory statute."
McWilliams v. Catholic Diocese of Rochester, 536 N.Y.S.2d 285, 286 (4th Dep't 1988). "No private cause of action is authorized for violations of the Mental Hygiene Law." Id.
Accordingly, plaintiff's claims under New York's Mental Hygiene Law must be dismissed.
B. Elements of a Section 1983 Claim
In order to state a cause of action under section 1983, a plaintiff must establish that: (1) the conduct complained of was "committed by a person acting under color of state law; and (2) the conduct complained of . . . deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994); see also Overhoff v. Ginsburg Dev., L.L.C., 143 F. Supp.2d 379 (S.D.N.Y. 2001). Section 1983 creates no substantive rights, but it does provide a "procedure for redress for the deprivation of rights established elsewhere." Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999).
"Once the State assumes responsibility for a patient by admitting him to a State mental hospital that is operated under State authority, the state is acting under color of law." Seide v Prevost, 536 F. Supp. 1121, 1136 (S.D.N.Y. 1982) (citing O'Connor v. Donaldson, 422 U.S. 563 (1975)). Furthermore, "[s]tate employment is generally sufficient to render the defendant a state actor." Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n. 18 (1982). Here, defendants do not contest that they were acting under color of state law. Thus, the only question is whether Lombardo suffered a violation of his constitutional rights. See Gonzalez, 2000 WL 1678036, at *4.
C. Lombardo Fails to State a Valid Claim Against Stone Plaintiff does not contend that Stone had any direct involvement in the alleged events. Instead, he alleges that "Stone [is] responsible for the training, supervision, discipline, and control of the actions of SHTA staff at Kirby." Complaint ¶ 20. However, "[i]t is well settled in this Circuit that `personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)).
The personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citing Wright, 21 F.3d at 501; Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)).
Lombardo's claims against Stone fail to satisfy any of the prongs of the Williams test. Obviously, Stone did not participate directly in the alleged constitutional violation. Stone was never informed that a violation had occurred and therefore cannot be held liable for failing to remedy the situation. There is no evidence that he created any policies or customs that would have allowed the alleged constitutional violations to take place. Stone was not grossly negligent in supervising his subordinates, nor did he exhibit deliberate indifference to the rights of patients. It has been established that "[t]he bare fact that [defendant] occupies a high position in the New York prison hierarchy is insufficient to sustain" a section 1983 claim. Colon, 58 F.3d at 874 (citing Wright, 21 F.3d at 501; Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). The same principle applies to the mental health field. Accordingly, Lombardo's claims against Stone are dismissed.
D. Lombardo Fails to State a Valid Claim Against Dr. Wack Plaintiff claims that Dr. Wack was "responsible for the training, supervision, discipline, and control of the actions of SHTA staff at Kirby." Complaint ¶ 20; see also Pl. Resp. at 7. In 1996, Dr. Wack received a letter from the Commission on Quality Care that pointed out various instances where staff did not adhere to mental hygiene standards when dealing with Lombardo. The Commission found that the Kirby staff had committed several violations including: denying Lombardo his privacy while he showered, failing to give him all of his range of motion exercises, and failing to serve him lunch one day. See 4/3/96 Letter from Randall Holloway, Mental Hygiene Facility Review Specialist, to Renate Wack ("Holloway Let."), Ex. S to Birenbaum Aff., at 1-3. Dr. Wack testified that a committee reviewing these incidents "found that Kirby's corrective actions were satisfactory and they closed the case." Wack Dep. at 7. Dr. Wack was also alerted of plaintiff's current allegations by letter. See id. at 4.
Plaintiff cites Fundiller v. City of Cooper City, 777 F.2d 1436 (11th Cir. 1985), to support his claim that, because of the 1996 violations, "Dr. Wack knew of a [c]onstitutional violation and failed to do anything about it, and must be held liable." Pl. Resp. at 8. This argument is dubious for two reasons. One, it is highly doubtful that any of the 1996 violations rose to a constitutional level. Two, even if the staff's misdeeds were constitutional violations, Dr. Wack did not fail to do anything about them; staff was counseled on how to properly treat patients and supervisors were told to ensure that "procedures are properly adhered to by all staff." Holloway Let. at 3. There were no deficiencies in Dr. Wack's handling of the 1996 violations that could render her responsible for the events alleged here. See Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986) (noting that "[c]ausation is an essential element of a section 1983 cause of action."). When Dr. Wack was informed of the current allegations she supervised a full investigation. Chardonet reported "the allegations of abuse, neglect, and mistreatment made by pt. Lombardo are not substantiated." Chardonet Mem. at 3. Dr. Wack's decision to accept Chardonet's report as accurate was reasonable. Even if plaintiff's allegations concerning the assault are correct, Dr. Wack simply cannot "reasonably be expected to guard against the deliberate criminal acts of [her] properly trained employees when [s]he has no basis upon which to anticipate misconduct." Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1994). Accordingly, Lombardo's claims against Wack are dismissed.
E. Lombardo Fails to State a Valid Claim Against Lee
For purposes of this motion, the Court must assume that plaintiff asked Lee to preserve the video footage and that she refused to do so. Even assuming that Lee failed to preserve the video footage, plaintiff's claims against Lee must fail. Lombardo does not allege that Lee directly participated in any of the alleged violations of his constitutional rights. Nor does he allege that Lee could have intervened on his behalf and failed to do so.
Plaintiff's claims against Lee is that she failed to investigate her subordinates and preserve evidence against them. The failure to investigate is not sufficient to sustain an Eighth Amendment claim. See Vukadinovich v. McCarthy, 901 F.2d 1439, 1444 (7th Cir. 1990) (failure to investigate alleged physical abuse cannot render supervisory defendants liable unless there is evidence that the failure to investigate caused the abuse); see also Wilson v. Detella, No. 97 Civ. 7833, 1999 WL 1000502, at *5 (N.D.Ill. Nov. 1, 1999) ("[f]ailure to investigate or to impose discipline on the wrongdoers after the fact [does] not amount to a constitutional violation [if] the omission was not the cause of [p]laintiff's injuries."). Accordingly, plaintiff's claims against Lee are dismissed.
G. The Fourteenth Amendment Claims
Plaintiff asserts all of his claims under both the Eighth and Fourteenth Amendments. However, at the time of the alleged events, plaintiff was had not been convicted of any crime. Accordingly, plaintiff's claims are more appropriately analyzed under the Fourteenth Amendment's Due Process Clause. See DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 199 n. 6 (1989) ("The Eighth Amendment applies `only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. . . . [T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law.'") (quoting Ingraham v. Wright, 430 U.S. 651, 671-72 (1977) (alterations in original).
The Supreme Court has stated, in dicta, that the substantive component of the Fourteenth Amendment's Due Process Clause requires the State to provide involuntarily committed mental patients with adequate food, shelter, clothing and medical care. See Youngberg v. Romeo, 457 U.S. 307, 315 (1982). Such patients also retain liberty interests in safety and freedom from bodily restraint. See id. at 315-16, 324 ("The State also has the unquestioned duty to provide reasonable safety for all residents and personnel within the institution. And it may not restrain residents except when and to the extent professional judgment deems this necessary to assure such safety. . . .").
In determining whether there has been a due process violation, it is necessary to balance "`the liberty of the individual'" and "`the demands of an organized society.'" Id. at 320 (quoting Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting)). In doing so, it must be noted that "[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish." Id. at 321-22.
Accordingly, whether a plaintiff's "constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests" in restraining individual liberty. Id. at 321. There is a presumption of correctness that applies when determining whether the State has met its obligations with respect to reasonable care, safety and non-restrictive confinement conditions. See id. at 324. Thus, decisions made by appropriate professionals are presumptively valid. See id. at 323. Therefore, "liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Id.
1. The Alleged Assault by Greene, Burgos, Rosario and Crescent Plaintiff alleges that Greene, Burgos, Rosario, and Crescent violated his Fourteenth Amendment rights by assaulting him after he left the shower. See Part I.C. supra. Defendants do not contend that the unprovoked choking, kicking, and stomping alleged by plaintiff can be justified as a necessary exercise of force. Rather, they contend that plaintiff's version of the events is fabricated. See Def. Mem. at 15-16. Defendants claim that Lombardo caused them to use reasonable force when he assaulted Burgos, and that their use of force was appropriately limited to restraining plaintiff. See id.
Defendants do not dispute that the amount of force alleged by plaintiff was gratuitous and excessive. Nor do they contend that the decision to assault Lombardo was a professional judgment made within accepted medical practice.
What defendants are really asking this Court to do is decide an issue of fact, namely whether the beating really took place. The fact that plaintiff testified to the beating at his deposition is sufficient to raise a genuine issue of material fact. This Court is both unwilling and unable to decide this issue against plaintiff on summary judgment.
Showers v. Eastmond, No. 00 Civ. 3725, 2001 WL 527484, at *3 (S.D.N.Y. May 16, 2001) (citing Payne v. Coughlin, No. 82 Civ. 2284, 1987 WL 10739, at *3 (S.D.N.Y. May 6, 1987); Crawford v. Braun, No. 99 Civ. 5851, 2001 WL 127306, at *4 (S.D.N.Y. Feb. 9, 2001)). "Credibility assessments and choices between conflicting versions of events are matters for a fact-finder at trial, not for the Court on a summary judgment motion." Moncrieffe v. Witbeck, No. 97-CV-253, 2000 WL 949457, at *6 (N.D.N.Y. June 29, 2000) (citing Fischl v. Armitrage, 128 F.3d 50, 55 (2d Cir. 1997)).
Accordingly, plaintiff's assault claims against Greene, Burgos, Rosario, and Crescent cannot be dismissed on summary judgment.
Although Crescent is not accused of physically participating in the beating, she is potentially liable because plaintiff alleges that her presence sanctioned the assault and because she failed to intervene on plaintiff's behalf. See O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988); Davis v. Patrick, No. 92 Civ. 548, 2000 WL 1154065, at *4 (S.D.N.Y. Aug. 14, 2000); Newland v. Achute, 932 F. Supp. 529, 534 (S.D.N.Y. 1996).
2. The Denial of Toileting People in custody have no constitutional right to use the bathroom whenever they please. See, e.g., Odom v. Keane, No. 95 Civ. 9941, 1997 WL 576088, at *4-5 (S.D.N Y Sept. 17, 1997) (plaintiff's claim that he was denied access to the bathroom for ten hours was not sufficient to survive summary judgment). This same principle applies to mental patients being held in restraints. Nonetheless, "reasonably adequate sanitation and the ability to eliminate and dispose of one's bodily wastes without unreasonably risking contamination are basic identifiable human needs. . . ." Whitnack v. Douglas County, 16 F.3d 954, 958 (8th Cir. 1994).
Plaintiff contends that his requests to be toileted were repeatedly ignored, as a result of which he urinated on himself twice, and on one occasion was forced to lie in his own urine for over three hours. Defendants do not argue that under the circumstances alleged by plaintiff, no constitutional violation occurred. Instead, defendants again argue that Lombardo's account is false. Defendants cite their own records which: make no mention of plaintiff's requests to urinate; note only one instance of plaintiff urinating on himself; and do not record plaintiff being forced to lie in his own urine. See Med. Rec. at 1113-40. Because a jury is best equipped to resolve these types of factual conflicts, Lombardo's failure to toilet claims against Rousseau and Crescent must proceed to trial.
Rousseau and Crescent are the only defendants alleged to have ignored his requests to use the bathroom.
3. The Forced Administration of Medication Plaintiff alleges that his Fourteenth Amendment right to refuse medication was violated when defendants medicated him against his will. The Second Circuit has held:
"It is a firmly established principle of the common law of New York that every individual of adult years and sound mind has a right to determine what shall be done with his own body and to control the course of his medical treatment." Such a right may be set aside only in narrow circumstances, including those where the patient "presents a danger to himself or other members of society or engages in dangerous or potentially destructive conduct within the institution."
Kulak v. City of New York, 88 F.3d 63, 74 (2d Cir. 1996) (quoting Rivers v. Katz, 67 N.Y.2d 485, 492, 495 (1986)); see also Project Release v. Prevost, 722 F.2d 960, 978-80 (2d Cir. 1983).
The right to refuse medication is derived from the policy stated in the New York Code of Rules and Regulations ("N.Y.C.R.R."), which provides:
(c) Patients who object to any proposed medical treatment or procedure . . . may not be treated over their objection except as follows: (1) Emergency treatment. Facilities may give treatment, except electroconvulsive therapy, to any inpatient, regardless of admission status or objection, where the patient is presently dangerous and the proposed treatment is the most appropriate reasonably available means of reducing that dangerousness. Such treatment may continue only as long as necessary to prevent dangerous behavior.
14 N.Y.C.R.R. § 527.8(c)(1); see also Kulak, 88 F.3d at 74 (noting that this right is protected under the Fourteenth Amendment's due process clause); Johnson v. Silvers, 742 F.2d 823, 825 (4th Cir. 1984) (the Fourteenth Amendment creates a liberty interest protecting patients from being unnecessarily forced to take anti-psychotic drugs); Doe v. Dyett, No. 84 Civ. 6251, 1993 WL 378867, at * 2 (S.D.N Y Sept. 24, 1993) ("The Due Process Clause of the Fourteenth Amendment prohibits the involuntary administration of anti-psychotic drugs.").
There is no dispute that plaintiff was medicated on three separate occasions from January 4 to January 5, 1998. See Def. Mem. at 5-7. At 4:00 a.m. on January 4, plaintiff was given an intramuscular dose of 50 milligrams of Benadryl. See Def. 56.1 ¶ 10. At 11:00 a.m. later that day, another 50 milligrams of Benadryl was administered. See id. at 11. Finally, at 8:00 p.m. on January 4, plaintiff was given Ativan and another 50 milligrams of Benadryl. See id. at 26. Defendants argue that plaintiff was assaultive and dangerous throughout this period and that medication was therefore necessary to protect his safety and the safety of others. See, e.g., Doe, 1993 WL 378867, at *3 (administering medicine to a dangerous patient in order to make the patient less dangerous does not violate the Fourteenth Amendment). Plaintiff disputes that he was dangerous throughout this period. See Pl. Resp. at 2.
Plaintiff does not contend that his rights were violated when he was medicated immediately after attacking Reede. See Pl. Resp. at 2. Rather, he contends that his rights were violated on the two later occasions when he was medicated. See id. at 2-3.
Benadryl is a antihistamine having sedative side effects. See 2001 Physicians' Desk Reference at 2420 (55th ed.). Ativan is an anti-anxiety agent similar in action to the benzodiazepines (Valium). See id. at 3348.
A dangerous patient is defined as one who "engages in conduct or is imminently likely to engage in conduct posing a risk of physical harm to himself or others." 14 NYCRR § 527.8(a)(4).
According to plaintiff, "defendants collaborated [sic] a story of an alleged assault on defendant Burgos to justify continued restraint and medication on plaintiff to sadistically cause harm to plaintiff as revenge for his attack on SHTA Reede." Id. at 3. Plaintiff's conclusory allegations of a purported conspiracy by defendants do not raise a triable issue of fact. See Project Release, 722 F.2d at 969 ("a non-moving party may not rely on mere conclusory allegations but must set forth `concrete particulars'"). In defendants' professional medical judgment, plaintiff was dangerously and unpredictably assaultive throughout the period of medication. See Med. Rec. at 1119, 1123, 1125, 1128. Such judgment is entitled to a presumption of correctness, see Youngberg, 457 U.S. at 324, especially where there is no evidence that defendants were not appropriately reacting to an emergency situation in giving plaintiff mild, non-psychotropic sedatives such as Benadryl and Ativan. See Odom v. Bellevue Hosp. Ctr., No. 93 Civ. 2794, 1994 WL 323666, at *3 (S.D.N.Y. July 5, 1994) ("[A] patient's liberty interest in not being involuntarily medicated is overridden in an emergency, where failure to medicate forcibly would result in a substantial likelihood of physical harm to that patient, other patients, or to staff members of the institution."). Accordingly, plaintiff's forced medication claim is dismissed.
Indeed, it is undisputed that plaintiff was initially medicated because he violently attacked a staff member.
Most of the case law in this area involves the forced administration of anti-psychotic drugs. See generally Project Release, 722 F.2d at 977-79. While there is no logical reason to limit such claims to a particular class of drugs, plaintiff's liberty interest in not being involuntarily medicated is surely not as strong when relatively innocuous, non-psychotropic medications are being forcibly administered.
4. The Unconstitutional Restraint "`Liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action.'" Youngberg v. Romeo, 457 U.S. at 316 (quoting Greenholtz v. Nebraska, 442 U.S. 1, 18 (1979) (Powell, J., concurring in part and dissenting in part). See also Branham v. Meachum, 77. F.3d 626, 629 (2d Cir. 1996); Wells v. Franzen, 777 F.2d 1258, 1261-62 (7th Cir. 1985) ("Freedom of bodily movement is a substantive right derived from the due process clause, and it is breached when a [patient] is bodily restrained except pursuant to an appropriate exercise of judgment from a health professional . . . it is the duty of a court to ensure that professional judgment in fact was exercised in the decision to restrain.").
Plaintiff was placed in restraints shortly after the attack on SHTA Reede, at approximately 3:50 a.m. on January 4, 1998, and was kept in restraints until approximately 2:30 p.m. on January 5, 1998. Plaintiff received adequate range of motion exercises on January 4, 1998. See Part I.B. supra. Plaintiff's restraint claims can thus be summarized as: (1) failure to receive proper range of motion exercises between 11:15 p.m. and 5:45 a.m. on January 4-5; see Pl. Resp. at 4; and (2) failure to timely release plaintiff from restraints during the time he claims he was not dangerous. See id. at 2-3. Plaintiff's range of motion claim represents, at most, a de minimis imposition on his liberty interests while his failure to release claim is not supported by any evidence whatsoever.
Kirby's medical records indicate that plaintiff was agitated during the period from 11:15 p.m. on January 4 through 5:30 a.m. on January 5. See Med. Rec. at 1140. This further justifies the medical staff's decision to withhold exercises on a short-term basis. Furthermore, section 33.04(f) of New York's Mental Hygiene Law provides that "[a] patient in restraint shall be released from restraint at least every two hours, except when asleep." (emphasis added). If plaintiff was not in an agitated state, presumably he would have been sleeping between 11:00 p.m. and 6:00 a.m. Thus, the decision to keep him in restraints during the night, without release for exercise, is justified as a matter of law.
Plaintiff has offered no competent evidence to rebut defendants' conclusion that he remained dangerous throughout the period of restraint. Plaintiff's conclusory allegations as to his state of mind, without any supporting evidence or corroboration, cannot contradict defendants' medical decision in keeping plaintiff restrained.
Because plaintiff's restraint claims do not rise to the level of a constitutional violation, they are dismissed.
5. The Denial of Food and Water "[U]nder certain circumstances a substantial deprivation of food may well be recognized as being of constitutional dimension." Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983); see also Williams v. Coughlin, 875 F. Supp. 1004, 1015 (S.D.N.Y. 1995); Demaio v. Mann, 877 F. Supp. 89, 93 (N.D.N.Y. 1995); Moss v. Ward, 450 F. Supp. 591 (W.D.N.Y. 1978). A constitutional violation occurs when the government "`so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs' including food . . ." Reed v. McBride, 178 F.3d 849, 852 (7th Cir. 1999) (quoting Helling v. McKinney, 509 U.S. 25, 32 (1993)).
Plaintiff alleges that he was denied meals for approximately twenty-four hours. See Complaint ¶ 26. Plaintiff contends further that the denial of meals and fluids was in violation of his Fourteenth Amendment rights.
See Pl. Resp. at 4. Plaintiff's claimed deprivations are, however, contradicted by both the evidence of record and plaintiff's own admissions. During his deposition, plaintiff admitted to receiving half a cup of water with some Tylenol at approximately 12:30 p.m. on January 4. See Lombardo Dep. at 98-99; see also Med. Rec. at 1131. Earlier that day, at approximately 11:15 a.m., plaintiff was allowed to shower in a bathroom where he had access to a sink and water. See Lombardo Dep. at 82. Plaintiff also admitted to having received an Ensure dietary supplement at approximately 12:15 a.m. on January 5. See id. at 104. In addition to these admissions, Kirby's medical records note that plaintiff drank one cup of water at 6:00 a.m. on January 4, see Med. Rec. at 1130, that he accepted eight ounces of water at 11:00 p.m. that same day, see id. at 1134, and that he accepted two cups of water at 3:30 a.m. on January 5, see id. at 1147. Furthermore, the medical records also show that plaintiff was offered, but refused, fluids and meals on several occasions. For example, the Progress Notes show that at 7:00 a.m. on January 4, plaintiff was offered fluids. See id. at 1114. Later on that day, at 5:00 p.m. and some time between 9:15 p.m. and 11:15 p.m., plaintiff was offered dinner but refused it. See id. at 1118. In light of the above, plaintiff's claimed deprivations simply do not rise to the level of a constitutional violation. Cf. Buthy v. Commissioner of the Office of Mental Health of New York State, 818 F.2d 1046, 1050 (2d Cir. 1987) ("[S]ome restrictions on individual liberty rise only to a `de minimis level of imposition with which the Constitution is not concerned.'") (quoting Ingraham v. Wright, 430 U.S. 651, 674 (1977)). Accordingly, plaintiff's denial of food and water claims are dismissed.
H. Defendants Are Not Entitled to Qualified Immunity
The Supreme Court has recognized that government officials acting under color of law enjoy qualified immunity from section 1983 claims: "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." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action." Anderson v. Creighton, 483 U.S. 635, 639 (1987) (quoting Harlow, 457 U.S. at 819). The constitutional right must have been clearly established at the time when the alleged infringement occurred. See Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998). Here, defendants are accused of several severely abusive acts. As "reasonably competent public officials," defendants should have been aware that these acts, if actually committed, were objectively unreasonable and violated established constitutional rights. Harlow, 457 U.S. at 819; McCormack v. Cheers, 818 F. Supp. 584, 599 (S.D.N.Y. 1993). Because defendants have failed to raise any "extraordinary circumstances [or prove] that [they] neither knew nor should have known of the relevant legal standard," their request for qualified immunity must be denied. Harlow, 457 U.S. at 819. If, at trial, it appears that plaintiff can only prove offenses much less severe than those currently alleged, qualified immunity may become appropriate. At present, there is no basis to grant defendants' motion for summary judgment based on the doctrine of qualified immunity.
IV. CONCLUSION
For the reasons stated above, defendants' motion for summary judgment is granted except as to plaintiff's assault and denial of toileting. A conference is scheduled for August 31, 2001 at 12:30 p.m.
SO ORDERED.